Transcript Changes in Washington State Confidentiality Laws in 2009

Changes in Washington
State Confidentiality Laws in
2009
Gregory Robinson
Washington Community Mental
Health Council
Two significant bills passed in 2009

Substitute House Bill 1300, described as
“Mental Health Services Information—
Access”

House Bill 2025, described as Treatment
Records – Sharing—Coordinated Care”

Both bills modified 71.05 RCW
Important Federal Confidentiality Laws
and Regulations
These are unchanged:
HIPAA – Health Insurance Portability
and Accountability Act – Privacy Rule
 42 CFR Part 2 – prohibits disclosure,
unless the patient has consented in
writing or the disclosure falls within
limited exceptions (e.g., child abuse
reporting, medical emergencies).

HIPAA’s effect on information access has
been minimal for mental health

There are requirements for business
associate contracts, and privacy
practices notices to patients, and
disclosure accounting, but

State law RCW 71.05 has generally
been more restrictive about access to
information about mental health services
A murder on Capitol Hill in Seattle
precipitated SHB 1300
Shannon Harps was stabbed to death on
New Years Eve in 2007.
 King County Prosecuting Attorney Dan
Satterberg headed a task force that
looked into the community supervision of
her killer, James Williams
 During its deliberations Isaac Zamora
went on a shooting rampage in Skagit
County, killing 6

Task force produced 57
recommendations, including
Task force reported that communication
between law enforcement, corrections
officers, and mental health providers was
a problem
 Many professionals were prohibited from
communicating with others because of
confidentiality laws.

Satterberg report
In some cases, even where no legal
prohibitions existed, there was a
perception of a prohibition of sharing
information, and the information was not
shared.
Satterberg report (cont.)
Statutes regarding confidentiality were
not all located in one place, and a
determination of the kinds of data and
communications allowed to be shared
was sometimes laborious and
complicated.
Origin of SHB 1300
Rep. Mary Lou Dickerson participated in
the task force, and introduced four bills in
the 2009 legislative session, including
SHB 1300
 After normal legislative processes, the
bill passed both the House and the
Senate, with only one dissenting vote
 Amended RCW 71.05.020, 71.05.390,
71.05.445, and 71.05.630

Some of the changes are just
organizational
Definitions that were in 71.05.445 were
moved to the main definitions area,
71.05.020, with no real changes
 Old language that was in 71.05.630
disappeared, but see 71.05.385
 Language was added in several places
in 71.05.390 to specify that “disclosure
under this subsection is mandatory”
under HIPAA

• Required vs. permitted under HIPAA
Only required disclosures are to
individual, of who has received
information, and to the Feds for
enforcing HIPAA
 All other disclosures are “permitted” if
certain conditions are met
 Disclosures to law enforcement must be
required by law in order to be permitted

New elements in RCW
71.05.385
New classes of public workers are
authorized to receive certain information,
about certain individuals, for certain
purposes:
 Law enforcement officers
Jail personnel
DMHPs
Public health officers
Additional information recipients (cont.)
Therapeutic court personnel
 Indeterminate Sentence Review Board
personnel
 Department of Corrections personnel

Information to be released

The fact, place, and date of an involuntary
commitment, the fact and date of discharge or
release, and the last known address of a
person who has been committed or
o
Information related to mental health
services concerning a person who:

Is currently committed to the custody or
supervision of the department of corrections or
the indeterminate sentence review board
under chapter 9.94A or 9.95 RCW; or

Has been convicted or found not guilty by
reason of insanity of a serious violent offense;
or

Was charged with a serious violent offense
and such charges were dismissed under RCW
10.77.086.
Allowable purposes for requesting
information



Completing presentence investigations
or risk assessment reports;
Assessing a person's risk to the
community;
Assessing a person's risk of harm to self
or others when confined in a city or
county jail;
More allowable purposes for
requesting information


Planning for and provision of supervision
of an offender, including decisions
related to sanctions for violations of
conditions of community supervision;
Responding to an offender's failure to
report for department of corrections
supervision.
Requesting person must have reasonable
suspicion that the person

Has engaged in activity indicating that a crime
or a violation of community custody or parole
has been committed; or
 Based upon his or her current or recent past
behavior, a crime or a violation of community
custody or parole is likely to be committed in
the near future; or
 Is exhibiting deterioration in mental functioning
which may make the individual appropriate for
civil commitment under 71.05 RCW.
How do you know that the request is
legitimate?
They tell you it is – you can rely on their
assertion
 Information request must be on a form
that has been vetted by a large group of
stakeholders, as required in 71.05.385
 Current version of the form will be used
for six months as a trial run
 If improvements are needed that is when
the form will be reviewed

HB 2025 provisions

Allows release of information without
authorization to licensed mental health
professionals, and certain licensed health
professionals
 Recipient of information must be providing
care, or the person has been referred to them
for evaluation or treatment
 The purpose is to assure coordinated care &
treatment
Licensed health care professionals who can
receive information without informed consent
Physicians
 Physicians assistants
 Osteopaths
 Osteopath PAs
 Naturopaths

ARNPs
 RNs
 LPNs

Administrative and office support staff for the
above professionals are also permitted
recipients
Why release without authorization, if it is
optional?
Obtaining authorizations can be timeconsuming, particularly if next visit is not
scheduled for near future
 Coordination with primary care can help
to address health disparities
 Feedback from pediatricians, parents, is
that mental health system does not work
well with others

Health care integration is coming

Community mental health needs to have
strong relationships with primary care
 Those relationships can help inform
community mental health providers about
serious issues of concern for the consumer
 Those relationships need to identify what
information the primary care provider needs
 Without that understanding, problems can
arise that seriously impair the relationship
Psychotherapy notes still require
authorization for release

Psychotherapy notes means notes
recorded (in any medium) by a health
care provider who is a mental health
professional documenting or analyzing
the contents of conversation during a
private counseling session or a group,
joint, or family counseling session and
that are separated from the rest of the
individual’s medical record.
Progress notes are not psychotherapy
notes

Psychotherapy notes excludes
medication prescription and monitoring,
counseling session start and stop times,
the modalities and frequencies of
treatment furnished, results of clinical
tests, and any summary of the following
items: Diagnosis, functional status, the
treatment plan, symptoms, prognosis,
and progress to date.
Psychotherapy use or disclosure
authorization requirement exceptions

For treatment provided by the covered entity.
 For a covered entity’s own training, and to
defend itself in legal proceedings brought by
the individual
 For HHS to investigate or determine the
covered entity’s compliance with the Privacy
Rules
 To avert a serious and imminent threat to
public health or safety
Psychotherapy notes authorization
exceptions (cont.)
To a health oversight agency for lawful
oversight of the originator of the
psychotherapy notes
 For the lawful activities of a coroner or
medical examiner
 Or as required by law, subject to strict
limitations.
