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Archive for the ‘Behavioral Health Law’ Category

Don’t Overlook Special Status of Behavioral Health Records

Monday, January 9th, 2017

Most health care providers have implemented HIPAA compliant policies and procedures and have made them operational.  We often see providers who have not given appropriate levels of thought to behavioral health records.  HIPAA and state laws generally provide different levels of protection for patient information that relates to mental health issues or alcohol and drug treatment.  This requires providers to have policies and procedures in place that help employees identify these types of records and which describes appropriate precautions and special rules that apply.

Generally, Federal law treats general mental health records in the same way it treats other types of health information.  Many state statutes require more protection over confidentiality of mental health records than general health information.  Further distinction is made between general mental health/behavioral health records and the subset of those records that include psychotherapy notes.   Psychotherapy notes are rarely subject to disclosure to third parties.  In many cases even the subject patient can be denied access to psychotherapy notes.

It is important that policies and procedures clearly define mental health records and psychotherapy notes and describe the special restrictions that are applicable to both.  Clearly, the special restrictions on psychotherapy notes must be honored.  It is also important that healthcare providers do not apply the broader restrictions that are applicable psychotherapy notes to more general mental health records. Failing to understand the distinction between the various types of records can have adverse consequences under applicable laws and can even put patient care at risk.

This issue is further complicated because State and Federal protections can be different and even conflicting.  This requires providers to perform a preemption analysis to determine which law to follow.  That analysis can be different depending on the type of record involved and the purpose and nature of the contemplated release.

Psychotherapy notes are given special treatment under Federal law.  Psychotherapy notes are defined under Federal law as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record.  Psychotherapy notes can rarely be released to a third party and often even the patient can be denied access to these records.  Certain information is not included within the definition of psychotherapy notes such as medical prescriptions, session start and stop times, frequency of treatment, results of clinical tests, summaries of diagnosis, symptoms, prognosis, etc.  This information is considered to be mental health records but does not receive the same special protection as psychotherapy notes.

Organizations should read and understand the distinction between general mental health records and psychotherapy notes.  Separation is key to complying with restrictions that are applicable to psychotherapy notes.  Psychotherapy notes should be stored separately from the patient’s medical records (which includes behavioral and mental health records).

Organizations that use electronic medical records (EMR) system must devise ways to separate psychotherapy notes from other types of medical records.  This might include integration of special naming and filing standards into the electronic record. Staff training is required to assure that the differences between psychotherapy notes and mental health records is maintained.

Some state laws complicate the analysis even further by provided additional restrictions on general mental health records.  Depending on your state, this analysis can become quite complicated and dependent on the purpose and nature of the contemplated release, application of preemption rules, and interpretation of state and Federal statutes and regulations.

Telehealth Certification In Wisconsin Mental Health Programs

Tuesday, August 11th, 2015

Process for Telehealth Certification In Wisconsin

Only certified mental health and/or substance abuse programs, or agencies planning to be certified as a mental health and/or substance abuse provider, may apply for telehealth certification. The first step in the process is for the agency to write a plan addressing each section in the attached template. The plan is then sent to the Behavioral Health Certification Section of the Division of Quality Assurance.

Provider’s must demonstrate compliance with their approved plan to the Division of Quality Assurance surveyor(s) during a site review or other unannounced focus visits.

Requirements for Telehealth Certification

There are several requirements that must be met in order to maintain certification.  Many of these requirements will need to be reflected in compliance policies and made operational as part of the telehealth program. These requirements fall in the following areas subject to additional detail in each area:

  • applicable regulatory requirements for the provider’s specific program (Administrative Code DHS 34, 35, 36, 40, 41, 61, 63, and 75)
  • requirements related to clinical supervision/collaboration for program staff who provide treatment services via telehealth, background checks, maintenance of professional liability insurance, documentation into the consumer’s record in a timely manner, and other requirements.
  • requirements regarding the locations for staff other than the main office of certified program or a certified branch office. Patients must receive the telehealth services at the main office or a certified branch office of the certified program.
  • Restriction against providing the telehealth services to consumers who are in-home or in-community.
  • minimum transmission standards established by the American Telemedicine Association (see http://www.americantelemed.org/resources/telemedicine-practice-guidelines/telemedicine-practice-guidelines)
  • compliance with vendor requirements for the telehealth hardware/software to ensure that the telehealth service is of high quality and as close to a face to face visit as possible.
  • orientation and ongoing training to staff on the use of the telehealth equipment, the clinical application of telehealth, safety and security during telehealth visits, privacy and confidentiality, back-up procedures if there is equipment failure, and consumer preparation for telehealth.
  • Assuring that patients are informed about the provision of services provided through telehealth, the history of telehealth, success rate of telehealth services, how telehealth sessions are conducted, and the extent to which the program is able to provide treatment services face-to-face versus via telehealth.
  • an ongoing method for obtaining consumer satisfaction on telehealth visits and evaluating the results of this survey process for quality assurance purposes
  • patient choice of having a face to face visit with a professional or seeing this person via telehealth, to the extent feasible.
  • workspaces must be secure, private, reasonably soundproof, and have a lockable door to prevent unexpected entry.
  • Efforts to ensure privacy so provider discussion cannot be overheard by others outside of the room where the service is provided.
  • If other people are in either the patient or the professional’s room, both the program staff and the consumer must be made aware of the other person and agree to their presence.
  • Program staff must verify for the consumer the identity of the staff member who is providing the treatment services via telehealth and verify for the staff member providing the treatment services theconsumer’s identity.
  • policy/procedure for technology breakdown that causes a disruption of the session.
  • System to Ensure secure upload and download with the vendor’s server.  At least 128 bit encryption software must be used.
  • assure that no information from a transmission of a telehealth services is stored on the vendor’s servers.
  • use of HIPAA Business Associate Agreement if information is transmitted via the vendor’s servers.

How Does Wisconsin Medicaid Reimburse for Telehealth?  Check Out The Article Here: Telemedicine Reimbursement Mental Health Programs

ATA Issues Telemedicine Protocols for Mental Health Services

Tuesday, March 26th, 2013

ATA Proposed Telemedicine Protocols – Mental Health Video Services

telemedicine video mental healthThe American Telemedicine Association just issues a request for public comment on a draft policy that it released relative to video-based mental health services. The proposed ATA policies are intended to “detail best-practices for online mental health providers delivering video-based services through personal computers and mobile devices” according to the ATA release.

You can access the ATA proposed practice guidelines at: www.americantelemed.org/standards

You can comment to the proposed practice protocols at the following link:
www.americantelemed.org/comments

For more information regarding legal and regulatory issues affecting telemedicine and telehealth programs, contact John H. Fisher at the Ruder Ware Health Care Focus Group through the contact information on this page.

Anti-kickback Statutes Safe Harbor Regulations

Thursday, December 8th, 2011

Anti-kickback Statutes and Safe Harbor Regulations

Medicare Antikickback Statute Safe HarborsOverview: On the books since 1972, the federal anti-kickback law’s main purpose is to protect patients and the federal health care programs from fraud and abuse by curtailing the corrupting influence of money on health care decisions. Straightforward but broad, the law states that anyone who knowingly and willfully receives or pays anything of value to influence the referral of federal health care program business, including Medicare and Medicaid, can be held accountable for a felony. Violations of the law are punishable by up to five years in prison, criminal fines up to $25,000, administrative civil money penalties up to $50,000, and exclusion from participation in federal health care programs.

Because the law is broad on its face, concerns arose among health care providers that some relatively innocuous — and in some cases even beneficial — commercial arrangements are prohibited by the anti-kickback law. Responding to these concerns, Congress in 1987 authorized the Department to issue regulations designating specific “safe harbors” for various payment and business practices that, while potentially prohibited by the law, would not be prosecuted.

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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