Compassionate Communication and Mental Health

HHS has been ordered to clarify HIPAA uses and disclosures of Protected Mental Health Information by December 13, 2017. “Compassionate Communication of HIPAA”, Title VI of the new 21st Century Cures Act, orders the U. S. Department of Health and Human Services (HHS) through its Office for Civil Rights (OCR) to “…ensure that health care providers, professionals, patients and their families, and others involved in mental or substance use disorder treatment have adequate, accessible, and easily comprehensible resources relating to appropriate uses and disclosures of protected health information…” under HIPAA Privacy Rule standards regarding the privacy of individually identifiable health information.

In “Compassionate Communication of HIPAA” Congress addresses confusion about permissible uses and disclosures under the HIPAA Privacy Rule which it says may hinder appropriate communication of health care information or treatment preferences with appropriate caregivers.

We untangle the HIPAA Rules to explain them clearly and simply. Congress recognizes this need and apparently hopes to avoid more confusion by directing OCR to make new HIPAA guidance “adequate, accessible, and easily comprehensible”.

Permitted uses and disclosures of health information about almost 10 million adults with “serious mental illness” are of special concern. Congress adopts the Substance Abuse and Mental Health Services Administration definition of ‘‘serious mental illness’’ as an illness affecting individuals 18 years of age or older as having, at any time in the past year, a diagnosable mental, behavioral, or emotional disorder that results in serious functional impairment and substantially interferes with or limits one or more major life activities.

By December 13, 2017 OCR must develop and issue new guidance to clarify permitted uses and disclosures of Behavioral Protected Health Information (BPHI) for purposes of:

1.     Communicating with a family member of the patient, caregiver of the patient, or other individual, to the extent that such family member, caregiver, or individual is involved in the care of the patient;

2.     In the case that the patient is an adult, communicating with a family member of the patient, caregiver of the patient, or other individual involved in the care of the patient;

3.     In the case that the patient is a minor, communicating with the parent or caregiver of the patient;

4.     Involving the family members or caregivers of the patient, or others involved in the patient’s care or care plan, including facilitating treatment and medication adherence;

5.     Listening to the patient, or receiving information with respect to the patient from the family or caregiver of the patient;

6.     Communicating with family members of the patient, caregivers of the patient, law enforcement, or others when the patient presents a serious and imminent threat of harm to self or others; and

7.     Communicating to law enforcement and family members or caregivers of the patient about the admission of the patient to receive care at, or the release of a patient from, a facility for an emergency psychiatric hold or involuntary treatment.

The new guidance will apply to uses and disclosures of BPHI (all of which are covered in The HIPAA E-Tool):

1.     For which an authorization is required (45 CFR §164.508 – See The HIPAA E-Tool Policy & Procedures PR-10);

2.     Requiring an opportunity for the individual to agree or to object (45 CFR§164.510 – See The HIPAA E-Tool Policy & Procedures PR-11);

3.     For which an authorization or opportunity to agree or object is not required (45 CFR §164.510 – See The HIPAA E-Tool Policy & Procedures PR-12); and

4.     The General rules for uses and disclosures of protected health information (45 CFR §164.502 – See The HIPAA E-Tool Policy & Procedures PR-8).

For more information contact our team at 800-570-5879 or


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Maggie Hales

Maggie Hales is a lawyer specializing in health information privacy and security. As CEO of ET&C Group LLC she advises health care providers and business associates in 36 states, Canada, Egypt, India and the EU, using The HIPAA E-Tool® to deliver up to date policies, forms and training on everything related to HIPAA compliance.

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