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MENTAL HEALTH AND THE LAW IN
PENNSYLVANIA
Altoona, PA
June 25, 2009
Thomas E. Sweeney, Esquire
Tsoules, Sweeney, Martin & Orr, LLC
29 Dowlin Forge Road
Exton, PA 19341
Tel: 610-423-4200
Fax:: 610-423-4201
[email protected]
MENTAL HEALTH AND THE LAW IN PENNSYLVANIA –
CONSENT TO MENTAL HEALTH TREATMENT
AGENDA
I.
II.
CONSENT TO TREATMENT
BALANCING THE RIGHTS OF MINORS, PARENTS AND
PROVIDERS: ACT 147
III. CONFIDENTIALITY OF MENTAL HEALTH RECORDS AND
ACT 147
IV. SPECIAL AREAS: CONFIDENTIALITY
V. RESPONDING TO SUBPOENAS, CORUT ORDERS AND
LAW ENFORCEMENT PERSONNEL
VI. AUTISM INSURANCE ACT
VII. LEGAL LIABILITIES
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SECTION I.
CONSENT TO TREATMENT
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CONSENT TO TREATMENT
Battery: Intentional and wrongful physical contact
with a person without his or her consent that
entails some injury or offensive touching.
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CONSENT TO TREATMENT
“Every human being of adult years and sound
mine has a right to determine what shall be done
with his own body, and a surgeon who performs
an operation without his patient’s consent
commits an assault, for which he is liable in
damages.” Schloendorff v. Soc’y of N.Y. Hosp.,
105 N.E. 92, 93 (1914).
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CONSENT TO TREATMENT
Classic Elements of Informed Consent
The common law doctrine of informed consent requires
that the following be explained to the patient:





purpose of procedure or service;
nature of procedure or service;
risks reasonably to be expected;
benefits reasonably to be expected; and
alternative methods of treatment.
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CONSENT TO TREATMENT
PENNSYLVANIA: STATE BOARD OF PSYCHOLOGY
APA ETHICAL STANDARDS – SELECTED SECTIONS
§ 3.10
Informed Consent
§ 8.02
Informed Consent to Research
§ 8.03
Informed Consent for Recording Voices and
Images in Research
§ 9.03
Informed Consent in Assessments
§10.01
Informed Consent to Therapy
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INFORMED CONSENT
APA Ethical Standards (3.10(a))
When psychologists conduct research/provide
assessment, therapy, counseling, or consulting
services, they obtain the informed consent of
the individual using language that is reasonably
understandable to that person except when
conducting such activities without consent is
mandated by law or governmental regulations or
as otherwise provided in this Ethics Code.
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INFORMED CONSENT
APA Ethical Standards (3.10(b))
When patient is legally incapable, psychologist
must: (1) provide an appropriate explanation,
(2) seek the individual’s assent, (3) consider
such persons’ preferences/best interests, and
(4) obtain appropriate permission from a legally
authorized person.
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INFORMED CONSENT
APA Ethical Standards (3.10(c))
When services are court ordered, inform the
individual of the nature of the anticipated
services, including whether the services are
court ordered or mandated and any limits of
confidentiality, before proceeding.
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IMFORMED CONSENT IN APA ETHICAL
STANDARDS (9.03)
(a) Assessments. Psychologists obtain informed
consent for assessments, evaluations, or diagnostic
services, as described in Standard 3.10, Informed
Consent, except when
• Testing is mandated by law or governmental regulations;
• Informed consent is implied because testing is conducted
as a routine educational, institutional, or organizational
activity (e.g., when participants voluntarily agree to
assessment when applying for a job);
• One purpose of the assessment, fees, involvement of third
parties, and limits of confidentiality and sufficient
opportunity for the client/patient to ask questions and
receive answers
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INFORMED CONSENT TO THERAPY (§ 10.01)
Inform Client as early in the Therapeutic
Relationship about:
•
•
•
•
The nature and anticipated course of therapy
Fees
Involvement of 3rd parties
Limits of confidentiality
Provide sufficient opportunity for
questions/answers
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CONSENT TO TREATMENT
 DPW – Prohibited Acts
 Social Workers – NASW Code of Ethics
 Licensed Professional Counselors – ACA Code
of Ethics
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CONSENT TO TREATMENT
Informed Consent: Capacity
Patient who was medicated and disoriented
signed forms for voluntary inpatient treatment.
Patient alleges physician and administrator knew
patient could not give informed consent. United
States Supreme Court affirms that a “cause of
action” under federal law (violation of due process
rights) was stated. Zinerman v. Burch, 494 U.S.
113 (1990)
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CONSENT TO TREATMENT
WHOSE CONSENT IS NECESSARY?
Competent Adult. There is a strong legal
presumption of a person’s competence to make
informed decisions.
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CONSENT TO TREATMENT
Competence To Consent To Treatment
1.
2.
3.
Deliberate About the Information Which Needs to be
Considered in Reaching the Decision
Decide to Accept or Reject a Proposed Plan of
Treatment
Understanding the Relevant Information Necessary to
Reach a Decision
Source: “Competence to Consent to Treatment as a
Psychological Construct,” Allan Tepper and Amiram Elwork
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SUBSTITUTE DECISION MAKING
Incapacitated Person
Persistent Vegetative State
Advanced Directives for Healthcare (20 Pa. C.S.A.
§ 5421)
Advanced Directives for Mental Healthcare (20
P.S. § 5801 et seq.)
Guardianship
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CONSENT TO TREATMENT
ADVANCED DIRECTIVES FOR MENTAL HEALTH
CARE ACT – 20 Pa. C.S.A. § 5801 et seq.
Purpose: Permit a competent person age 18 or older, or
an emancipated minor to execute a document that outlines
preferences regarding mental health treatment in the event
that person in the future is incapacitated by mental illness.
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CONSENT TO TREATMENT
ADVANCED DIRECTIVES FOR MENTAL HEALTH
CARE ACT – 20 Pa. C.S.A. § 5801 et seq.
Advance Directives may take 3 forms:



Declaration- contains express instructions to health care
providers about details of treatment
Mental Health Power of Attorney – directive that allows
“agent” to make treatment decisions on individual’s
behalf
Combination of both
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CONSENT TO TREATMENT
ADVANCED DIRECTIVES FOR MENTAL
HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq.
Formalities:


Signed, witnessed, dated by witnesses at least 18 years old
Advance Directive valid for 2 years from the date of
execution unless:



It is revoked
The individual creates a new directive
The individual does not have capacity to make decisions at the time
of expiration
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CONSENT TO TREATMENT
ADVANCED DIRECTIVES FOR MENTAL HEALTH
CARE ACT – 20 Pa. C.S.A. § 5801 et seq.
When Advance Directive Becomes Operationalized:

When presented by the individual to the attending physician
– duty on patient to inform provider of its existence

When the individual is deemed incapacitated

When the conditions stated are met
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CONSENT TO TREATMENT
ADVANCED DIRECTIVES FOR MENTAL HEALTH
CARE ACT – 20 Pa. C.S.A. § 5801 et seq.
Provider Responsibilities
 Determine incapacity (presume competent when Advance
Directive executed absent involuntary commitment or
adjudicated incompetent)
 Honor directive if consistent with standard of care or transfer
 While awaiting transfer, treat patient consistent with directive
 If unable to transfer, “may” discharge individual
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REFUSAL OF TREATMENT




Federal
Pennsylvania
Refusal of Medication
Restraint and Seclusion: DPW
 (DPW Bulletin: OMHSAS-02-01)
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REFUSAL OF TREATMENT
Limitations
 State’s interest in preserving life
 Patient’s refusal constitutes a suicide attempt
 State’s interest in preserving the integrity of the
medical profession
 Termination of pregnancy
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RESTRAINTS/SECLUSION
 Private Practices – without patient’s consent
restraints constitute a battery
 Child Residential and Treatment Facilities –
55 Pa. Code § 3800.200
 DPW – 55 Pa. Code § 13.1 – applicable to
facilities operated by Dept. (health centers, state
hospitals,, institutions for mentally ill/retarded)
(Continued)
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RESTRAINTS/SECLUSION
 DPW – “The Use of Seclusion and Restraint in Mental Health
Facilities and Programs” – OMHSH Bulletin 02-01- applied to
following mental health facilities and programs:









Residential Treatment Facilities for Adults and Children;
Adult Long Term structured Residence Programs;
Crisis Residential Services;
Crisis Mobile Services;
Crisis Walk-in Services;
Community Residential Rehabilitation Programs;
Psychiatric Units in General Hospitals;
Private Psychiatric Hospitals;
Partial Hospitalization Programs;
(Continued)
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RESTRAINTS/SECLUSION
 Psychiatric Outpatient Clinics;
 Behavioral Health Rehabilitation Service Programs;
 Family Based Mental Health Services;
 Intensive Case Management;
 Resource Coordination Programs;
 Community Treatment Teams;
 Vocational Rehabilitation Services;
 Social Rehabilitation Services;
 Housing Support Services; and
 Psychiatric Rehabilitation Programs.
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CONSENT TO TREATMENT
Guardianship
The Standby Guardianship Act
Incapacitated Persons
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SECTION II.
INPATIENT MENTAL HEALTH TREATMENT
AGENDA
 Voluntary Inpatient Treatment
 Involuntary Inpatient Treatment
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VOLUNTARY INPATIENT MHT
Definition: Inpatient Mental Health Treatment
“Inpatient Treatment” shall include all treatment
that requires full or part-time residence in a
facility.” 50 P.S. § 7103
“Inpatient Treatment” means all mental health
treatment that requires full-time or part-time
residence in a facility that provides mental
health treatment. Act 147: § 1.1(c)
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VOLUNTARY INPATIENT MHT
Persons Who May Authorize Voluntary Inpatient
Treatment.
“A parent, guardian, or person standing in loco
parentis to a child less than 14 years of age may
subject such child to examination and treatment
under this act, and in so doing shall be deemed to be
acting for the child. ”
(50 P.S. § 7201)
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VOLUNTARY INPATIENT MHT
Persons Who May Authorize Voluntary
Inpatient Treatment.
Any person 14 years of age or over who believes
that he is in need of treatment and substantially
understands the nature of voluntary treatment may
submit himself to examination and treatment under
this act, provided that the decision to do so is made
voluntarily.
(50 P.S. §7201.)
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VOLUNTARY INPATIENT MHT
Adolescent Consent and Parental Rights
 Notice to parents
 Right to object
 Hearing within 72 hours
(50 P.S. §7204)
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VOLUNTARY INPATIENT MHT
REGULATIONS. “Notice to Parents Regarding
Voluntary Inpatient Treatment of Minors.”
(55 Pa. Code §5100.74)
Notice is given by telephone, when possible.
Delivery of DPW From MH-781.
Failure to determine whereabouts of parents; director to
take reasonable action, including notifying appropriate
agencies.
If parents object – director of facility arranges
for hearing.
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VOLUNTARY INPATIENT MHT
Persons Who May Authorize Voluntary Inpatient
Treatment
“Person Standing In Loco Parentis” refers to a person who
puts himself in the situation of assuming the obligations
incident to the parental relationship without going through
the formality of a legal adoption. The status of "in loco
parentis" embodies two ideas: first, the assumption of a
parental status, and second, the discharge of parental
duties." Cardomone v. Elshoff, 659 A.2d 575 (Pa. Super.
Ct. 1995)
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VOLUNTARY INPATIENT MHT
EXPLANATION AND CONSENT
“Before a person is accepted for voluntary inpatient
treatment, an explanation shall be made to him of such
treatment, including the types of treatment…and any
restraints or restrictions…, together with a statement of his
rights under this act. ”
(50 P.S. § 7203)
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VOLUNTARY INPATIENT MHT
Withdrawal of Consent
A person in voluntary treatment may withdraw at any
time by giving written notice unless…he agreed in
writing at the time of admission that his release can
be delayed…such period shall not exceed 72 hours.
(50 P.S. § 7206)
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INVOLUNTARY INPATIENT MHT
WHO IS SUBJECT TO INVOLUNTARY TREATMENT
A person is severely mentally disabled when, as a result of
mental illness, his capacity to exercise self-control,
judgment, discretion in the conduct of his affairs and social
relations or to care for his own personal needs is so
lessened that he poses a clear and present danger of harm
to others or to himself.
(50 P.S. § 7301)
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INVOLUNTARY INPATIENT MHT
WHAT IS “CLEAR AND PRESENT DANGER”
The person … would be unable, without care, supervision
and the continued assistance of others, to satisfy his need
for nourishment, personal or medical care, shelter, or selfprotection and safety, and that there is a reasonable
probability that death, serious bodily injury or serious
physical debilitation would ensue within 30 days unless
adequate treatment were afforded under this act.
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INVOLUNTARY INPATIENT MHT
WHAT IS “CLEAR AND PRESENT DANGER”
The person has attempted suicide and there is the
reasonable probability of suicide unless adequate
treatment is afforded under this act (proof of threats and
acts in furtherance of the threat to commit suicide
demonstrate a clear and present danger).
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INVOLUNTARY INPATIENT MHT
WHAT IS “CLEAR AND PRESENT DANGER”
The person has substantially mutilated himself or
attempted to mutilate himself substantially and
there is a reasonable probability of mutilation
unless adequate treatment is afforded under this
act.
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INVOLUNTARY INPATIENT MHT
INVOLUNTARY COMMITMENT
§302 - Involuntary Emergency Examination and Treatment
authorized by a physician Not-to-Exceed 120 hours.
§303 - Extended Involuntary Emergency Treatment certified by a
judge or mental health officer – Not-to-Exceed 20 days
§304 - Court-Ordered Involuntary Treatment Not-to-Exceed 90
days
§305 - Additional periods of Court-Ordered Involuntary
Treatment
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CONSENT TO TREATMENT
MINORS
SUPREME COURT OF PENNSYLVANIA
Commonwealth v. Nixon, 563 Pa. 425 (Pa. Super. Ct. 2000). Concurring
opinion of Supreme Court Justice Cappy: “Under common law, a
minor is deemed incompetent to provide informed consent…Until the
age of majority, a minor’s parents make medical treatment decisions
on his or her behalf.”
“The Pennsylvania legislature, however, has rendered the authority of
parents to speak for their minor child with respect to health care less
than absolute in certain circumstances, by enacting several statutes
that allow minors to speak for themselves.”
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MINORS CONSENT ACT
35 P.S. § 10101
Individual Consent: “Any minor who is 18 years
of age of older, or has graduated from high
school, or has married, or has been pregnant, may
give effective consent to medical, dental and
health services for himself or herself, and the
consent of no other person shall be necessary.”
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MINOR’S CONSENT TO MEDICAL, DENTAL
AND HEALTH SERVICES
35 P.S. § 10102
Consent for Children with Minor Parents. Any
minor who has been married or has borne a child
may give effective consent to medical, dental and
health services for his or her child.
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MINOR’S CONSENT TO MEDICAL, DENTAL
AND HEALTH SERVICES
35 P.S. § 10103
Pregnancy, Venereal Disease and Other Reportable
Diseases. Any minor may give effective consent for
medical and health services to determine the presence of
or to treat pregnancy, and venereal disease and other
diseases reportable under the act of April 23, 1956 (P.L.
1510), known as the “Disease Prevention and Control Law
of 1955,” and the consent of no other person shall be
necessary.
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MINOR’S CONSENT TO MEDICAL, DENTAL
AND HEALTH SERVICES
35 P.S. § 10104
When Consent Unnecessary. Medical, dental and health
services may be rendered to minors of any age without
the consent of a parent or legal guardian when, in the
physician’s judgment, an attempt to secure consent
would result in delay of treatment which would increase
the risk to the minor’s life or health.
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MINOR’S CONSENT TO MEDICAL, DENTAL
AND HEALTH SERVICES
35 P.S. § 10105
Liability for Rendering Services. The consent of a minor
who professes to be, but is not a minor whose consent
alone is effective to medical, dental and health services
shall be deemed effective without the consent of the
minor’s parent or legal guardian, if the physician or other
person relied in good faith upon the representations of
the minor.
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OTHER MINOR CONSENT AREAS
 Emancipation
 Substance Abuse Services (71 P.S. § 1690.112)
 Abortion Control Act (18 Pa. C.S.A. § 3201 et
seq.)
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ACT 147
Agenda
 Minors Consent Act
 Definitions
 Consent: Outpatient Treatment
 Consent: Inpatient Treatment
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MINORS CONSENT ACT
 Act 147 Amends the “Minors Consent to
Medical, Dental and Other Health Services”
(35 P.S. §1010 et seq.) (the “Minors Consent
Act”)
 Nothing in Act 147 is intended to restrict the
rights of a minor who satisfies the conditions of
the Minors Consent Act. Act 147: 1.1(c)
 Effective January 22, 2005
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ACT 147: DEFINITIONS
“Facility” means any mental health establishment,
hospital, clinic, institution, center, day-care center,
base service unit, community mental health center,
or part thereof, that provides for the diagnosis,
treatment, care or rehabilitation of mentally ill
persons. Act 147: 1.1(d)
CONTINUED
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ACT 147
“Mental Health Treatment” means a course of
treatment, including evaluation, diagnosis, therapy and
rehabilitation designed and administered to alleviate an
individual’s pain and distress and to maximize the
probability of recovery from mental illness. The term
also includes care and other services which supplement
treatment and aid or promote recovery. Act 147: 1.1(d)
CONTINUED
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ACT 147
“Inpatient Treatment” means all mental
health treatment that requires full-time or parttime residence in a facility that provides mental
health treatment. Act 147: 1.1(d)
What is “Outpatient Mental Health Treatment”?
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ACT 147:
CONSENT FOR OUTPATIENT TREATMENT
“Any minor who is fourteen years of age or older
may consent on his or her own behalf to outpatient
mental health examination and treatment, and the
minor’s parent or legal guardian’s consent shall not
be necessary.”
Act 147: §1.1(a)(1)
CONTINUED
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ACT 147:
CONSENT FOR OUTPATIENT TREATMENT
A parent (“P”) or legal guardian (“LG”) of a
minor less than eighteen years of age may
consent to voluntary outpatient mental health
examination or treatment on behalf of the minor,
and the minor's consent shall not be necessary.
Act 147: §1.1(a)(2)
CONTINUED
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ACT 47:
CONSENT FOR OUTPATIENT TREATMENT
“A minor may not abrogate consent provided by a
P/LG on the minor's behalf, nor may a parent or legal
guardian abrogate consent given by the minor on his
or her own behalf.”
Act 147: §1.1(a)(3)
- “Abrogate” means to cancel, repeal or annul.
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ACT 147: OUTPATIENT TREATMENT
Issues/Topics
Separate but Equal Consent
Medications
Non-MHT Services – P/LG Consent
“In Loco Parentis”
Medical Consent Act: 11 P.S. § 2511
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ACT 147:
CONSENT FOR INPATIENT TREATMENT
“Parent/Legal Guardian (“P/LG”) of minor under 18
may consent to voluntary inpatient treatment
pursuant to MHPA on the recommendation of a
physician who has examined the minor. The
minor's consent is not necessary.”
Act 147: §1.1(b)
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ACT 147: INPATIENT TREATMENT
Act 147 does not restrict or alter:
a minor’s rights in the Mental Health
Procedures Act (“MHPA”) to consent to
voluntary inpatient treatment at age 14 or
older. Act 147: 1. § 1(b)(2)
CONTINUED
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ACT 147: INPATIENT TREATMENT
Act 147 does not restrict or alter a P/LG’s right to
object to minor’s (14+) consent to voluntary
inpatient treatment under the MHPA. Act
147:1.1(b)(3)
See 50 P.S. § 7204 (Notice to Parent)
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ACT 147: INPATIENT TREATMENT
P/LG may not abrogate consent of minor; minor
may not abrogate consent of P/LG.
Act 147: §1.1(b)(4)
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ACT 147: INPATIENT TREATMENT
P/LG consent to inpatient treatment may be
revoked; treatment will terminate unless minor 14
to 18 consents to continued inpatient treatment.
Act 147: §1.1(b)(5)
Why 18? Should be 17?
CONTINUED
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ACT 147: INPATIENT TREATMENT
Minor 14-18 who has consented to inpatient
treatment may revoke his/her consent; minor’s
revocation of consent is effective unless P/LG of
minor has provided for continued treatment.
Why 18? Should be 17?
See 35 P.S. §10101: “Any minor who is 18… may give
effective consent…”
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ACT 147: INPATIENT TREATMENT
Facility Director shall:
 Provide minor (14-17 years of age) with an explanation
of the nature of the treatment and minor’s rights;
 File a petition with the Court, if minor objects to
treatment consented to by P/LG.
Act 147: §1.1(b)(7)(8)
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ACT 147: INPATIENT TREATMENT
Court shall promptly:
 Appoint attorney for minor.
 Schedule hearing within 72 hours of the filing of the
petition.
 Judge or mental health review officer determines
whether voluntary mental health treatment is in the
best interest of the minor.
Act 147: §1.1(b)(8)
CONTINUED
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ACT 147: INPATIENT TREATMENT
For patient treatment to continue against minor’s
wishes, the Court must find voluntary inpatient
treatment necessary by clear and convincing
evidence that:
• Diagnosed mental disorder;
• Disorder is treatment in the particular facility; or
• Least restrictive environment.
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ACT 147: INPATIENT TREATMENT
• If Court orders minor to undergo treatment,
minor shall receive services for up to 20 days.
• Minor shall be discharged whenever:
– Attending physician determines that minor is no
longer in need of treatment;
– Consent to treatment has been revoked;
– The end of the time period of the order; or
– Whichever comes first.
Act 147: §1.1(b)(9)
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Act 147: INPATIENT TREATMENT
•
Court conducts a review hearing to determine
whether to:
 release the minor;
 make a subsequent order for inpatient treatment
not to exceed 60 days, subject to discharge
whenever the attending physician determines the
minor is no longer in need of treatment;
 consent (parental) is revoked under Paragraph 5;
or
 Court may order 60-day period of treatment.
Act 147: 1.1 (b)(9)(10)
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ACT 147: INPATIENT TREATMENT
Nothing in this subsection shall prevent a nonconsenting parent who has legal custody rights of
a minor child to object to “voluntary” inpatient
services approved by consenting parent by filing a
petition in Court; hearing to be held in 72 hours.
Act 147: §1.1(b)(11)
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ACT 147: INPATIENT TREATMENT
Issues/Topics
“Parental/LG Commitment” of minor 14 – 17 years of
age
Physician recommendation required. What type of
physician?
Right to object process created for “Parental
Commitment Process”
When is “petition” required to be filed?
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ACT 147 – INPATIENT TREATMENT
Issues/Topics
• Act 147 Hearings
– Coordination With Local Court
– P/LG legal rights
– Utilization Review
– Retroactive Audits
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CONSENT TO TREATMENT
SHARED CUSTODY
The term “shared custody” is defined as an order
awarding shared legal or shared physical custody,
or both, of a child in such a way as to assure the
child of frequent and continuing contact with
physical access to both parents. The terms
“shared custody” and “joint custody” are
synonymous.
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CONSENT TO TREATMENT
SHARED LEGAL CUSTODY
In re Wesley J.K., 445 A.2d 1243 (Pa. Super. Ct. 1982)
Hill v. Hill, 761 A.2d 1242 (Pa. Super. Ct. 2000)
Senatore v. Senatore, 58 Pa. D. & C. 4th 564 (Pa D&C 2000)
Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992)
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STATE BOARD OF PSYCHOLOGY
Grossman v. State Bd. of Psychology, 825 A.2d
748 (Pa. Commw. Ct. 2003).
Grossman was reprimanded and fined $1,000 in civil
penalties for having performed a custody evaluation on a
child without the consent of both parents who share joint
custody. Grossman met with the child even though the
father expressly prohibited him from doing so. (12-17-01)
On appeal, Commonwealth Court affirmed the actions of
the Board.
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CONSENT ISSUES,
AGENCIES AND FOSTER PARENTS
No regulation gives either private agencies or foster
parents the authority to consent to medical
examination/treatment.
As general practice, agencies have parents/guardians
sign release authorizing agency to obtain routine care;
the agency in turn delegates this authority to foster
parents.
Non-routine treatment requires specific consent from
the parent/guardian or court order.
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CONSENT AND CLIENTS IN THE DEPENDENCY
SYSTEM
Routine Treatment. Examples include:
Well baby visits and child health examinations
Immunizations
Dental care
Vision care
Hearing care
Treatment for ordinary injuries and illnesses
Non-routine Treatment. Examples include:
Nonemergency surgery
Cosmetic surgery
Experimental treatments
Emergencies
Physician does not need consent from parent/legal guardian to treat minor where
physician determines that an attempt to secure consent would increase risk to the
minor’s life or health.
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CONSENT AND CLIENTS IN THE
DELINQUENCY SYSTEM
Minor awaiting adjudication or post-adjudication in secure
detention or secure care facility
Routine
Parent’s Prior General Written Consent
OR
Court Order
Non-routine Parent’s Prior Written Consent To Each
Instance of Treatment
OR
Court Order
Emergency
No Consent Needed
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CONSENT ISSUES AND
THE DELINQUENCY COURT:
During pendency of a delinquency proceeding,
delinquency court can order:
(1) physical or mental examination of a
minor; and/or
(2) medical treatment of a minor who is
suffering a serious illness that, in the
opinion of a physician, requires prompt
treatment
42 Pa.C.S. §. 6339
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CONSENT AND PROBATION OFFICERS
No regulation gives juvenile
probation officers the authority to
consent to medical examination/
treatment on behalf of the minor who
they are monitoring
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SECTION III.
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
1.
GENERAL RULE: Obtain the Patient’s
Authorization to Release Confidential Patient
Information.
2.
GENERAL RULE: Obtain a Court Order to
Release Confidential Patient Information or to
Testify at Trial.
3.
GENERAL RULE: Error on Side of Caution.
Document Cooperation and Confidentiality of
Patient Information.
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
Constitutional Right to Privacy – Pennsylvania
In re “B” 394 A.2d 419 (Pa. 1978)
“We conclude that in Pennsylvania, an individual’s
interest in preventing the disclosure of information
revealed in the context of a psychotherapist-patient
relationship has deeper roots than the doctor-patient
privilege statute, and that the patient’s right to prevent
disclosure of such information is constitutionally based.”
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
Constitutional Right to Privacy – Pennsylvania
In the Matter of T.R., 731 A.2d 1276 (Pa. 1999)
“In holding that the mother should be compelled to
undergo a psychiatric examination the results of which are to be
released to the parties, Superior Court not only ignored the holding
in re “B”, which we find indistinguishable from the present case,
but also elevated the interests of the state beyond all reasonable
limits. We conclude, as we did in re “B”, that there is no
governmental interest sufficient to negate the mother’s assertion of
her right of privacy.”
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Confidentiality of Records
(50 P.S. §7111)
“All documents concerning persons in treatment
shall be kept confidential and, without the
person’s written consent, may not be released or
their contents disclosed to anyone except:
Continued
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Confidentiality of Records (Continued)
(50 P.S. §7111)
those engaged in providing treatment for the person;
the county administrator, pursuant to Section 110;
a court in the course of legal proceedings authorized by this act; and
Pursuant to Federal rules, statutes and regulations governing of
patient information where treatment is undertaken in a federal agency.
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Confidentiality of Records (Continued)
(50 P.S. §7111)
In no event, however, shall privileged communications, whether
written or oral, be disclosed to anyone without such written consent.”
Exceptions: Statistical collection of data as long as patient is not
identified; court or county mental health officers may disclose to
Pennsylvania State Policy relating to firearms.
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Case Law Interpreting the MHPA
Commonwealth v. Moyer, 595 A.2d 1177 (Pa. Super.
Cr.1991)
Defendant was criminally convicted of statutory rape, involuntary
deviate sexual intercourse, indecent assault, indecent exposure,
and corruption of minors. The Superior Court held that
defendant’s inpatient mental health records were privileged under
the MHPA and could not be used as evidence against defendant in
criminal proceeding. “We note first that the ‘Mental Health
Procedures Act’ is to be strictly construed.”
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Case Law Interpreting the MHPA
In the Interest of Frank Roy, 620 A.2d 1172 (Pa. Super. Ct.
1993)
Heir petitioned for disclosure of decedent’s confidential mental health
inpatient treatment records. Court denied request. Heir could not
waive confidentiality with respect to decedent’s inpatient mental
health records.
Distinguish: Heir from Executor
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456 (3rd Cir. 1996)
Parents as conservators of estate of female patient at mental hospital
who was sexually assaulted while at hospital brought action against
hospital and sought disclosure of records relating to two patients who
were alleged to have committed assault. Hospital was ordered by the
District Court to produce any incident reports” created as a result of
incident and to submit records of patients for in camera review, and
parents moved court to hold hospital in contempt for failing to
produce records.
Hospital petitioned for writ of mandamus seeking to compel court to
withdraw order. Records were absolutely privileged under
Pennsylvania MHPA and did not come within exception to statute.
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
INPATIENT PSYCHIATRIC SERVICES
Who has the Right to Release? Any competent individual over the
age of 14 may authorize the release of his or her inpatient (i.e.,
residential) mental health records.
In Christy v. Wordsworth-At-Shawnee, 749 A.2d 557 (Pa. Commw.
Ct. 2000), a mental health patient brought suit against a treatment
provider, fellow patient and others to recover for a sexual assault
by a fellow patient. The parents authorized release of their child’s
mental health records. The court held that the child who was over
14 was the only one who could authorize the release.
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
OUTPATIENT MENTAL HEALTH SERVICES
•
•
•
•
Outpatient Clinic
Partial Hospitalization
BHRS
After Act 147: Private Practice
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
DPW Regulations: (55 Pa. Code §5100.31-39)
5100.31
5100.32
5100.33
5100.34
5100.35
5100.36
5100.37
5100.38
5100.39
Scope and Policy
Nonconsensual Release of Information
Patients Access to Records and Control Over Release of
Records
Consensual Release to Third Parties
Release to Courts
Departmental Access to Records
Records Relating to Drug and Alcohol Abuse
Child or Patient Abuse
Release of Records
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
§5100.33 Patient Access to Records and Control
Over Release of Records
• 14 years of age or older who understand nature of
documents to be released
• A person chosen by client/patient
• If client/patient is deceased, client/patient’s
executor or personal representative of estate
• Parent or Guardian if person is under 14 or
incompetent
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
§5100.33 Patient Access to Records and Control
Over Release of Records
• Access – does not mean a copy (See: HIPAA
Duties)
• Denial of Access: substantial detriment or reveal
confidential source
• Records from other Agencies become part of
record; subject to control by client/patient
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
§5100.35 Release to Courts
• No release of records in response to a Subpoena or other
Court discovery proceedings without patient consent or an
additional court order
• Duty to Inform Court
• Inform client/patient’s attorney
• Defense counsel for Provider may review records; minimum
necessary applies
• Employees are to be informed; violations include civil and
criminal liability
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95
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
IMPACT OF ACT 147
§1.2(A) Limited P/LG Rights to Release Minors (14+) Records
§1.2(B) Limit on P/LG Rights to Release
§1.2(C) P/LG Right to Information to Give Informed
Consent
§1.2(D) Minor (14+) Control of Mental Health Treatment Records
§1.2 (E) Consent to Release Other Than Those Above Subject to
MHPA
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: ADOLESCENT RIGHTS
Consent to release of mental health records for all
purposes and in all circumstances other than those
provided for in this section shall be subject to the
provisions of the “Mental Health Procedures Act,” and
other applicable federal and state statutes and
regulations.
Act 147: 1.2(E)
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: RELEASE OF RECORDS
Except to the extent set forth in subsection 1.2(A), (B) or
(C), the minor shall control the release of the minor's
mental health treatment records and information to the
extent allowed by law.
Act 147: 1.2(D)
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: RELEASE OF RECORDS
When a minor has provided consent to outpatient mental
health treatment under Section 1.1(a)(1), subject to
subsection 1.2(A)(2) (records related to prior treatment
consented to by minor), the minor shall control the
records of treatment to the same extent as the minor
would control the records of inpatient care or involuntary
outpatient care under the “Mental Health Procedures Act”
and its regulations.
Act 147: 1.2(D)
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99
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OF P/LG
When a parent or legal guardian (“P/LG”) has consented
to treatment of a minor fourteen years of age or older
under Section 1.1(a)(2) (Outpatient Treatment) or (b)(1)
(Inpatient Treatment), the following shall apply to the
release of the minor's records and information:
Act 147: § 1.2 (A)
CONTINUED
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100
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OF P/LG
“The P/LG may consent to release of the minor's medical
records and information, including records of prior mental
health treatment for which the P/LG had provided
consent, to the minor's current mental health care
treatment provider.”
Act 147: §1.2(A)(1)
CONTINUED
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101
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OF P/LG
If deemed pertinent by the minor's current mental
health treatment provider, the release of information
under this subsection may include a minor's mental
health records and information from prior mental
health treatment for which the minor had provided
consent to treatment.
Act 147: §1.2 (A)(2)
CONTINUED
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102
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OF P/LG
“The P/LG may consent to the release of the minor's
mental health records and information to the primary
care provider if, in the judgment of the minor's current
mental health treatment provider, such release would not
be detrimental to the minor.”
Act 147: §1.2(A)(3)
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103
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OFP/LG
Release of mental health records and information under
subsection (A) shall be limited to release directly from
one provider of mental health treatment to another or
from the provider of mental health treatment to the
primary care provider.
Act 147: §1.2(B)
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104
CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
ACT 147: LIMITED RIGHTS OF P/LG
The P/LG who is providing consent to inpatient and
outpatient mental health treatment of a minor (14+) shall
have the right to:
•
•
•
•
•
•
•
information necessary for providing consent;
symptoms;
conditions to be treated;
medications;
other treatments;
risks and benefits;
expected results.
Act 147: §1.2(C)
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SHARED LEGAL CUSTODY
Access to Records and Information:
 In view of the public policy that each parent shares in the rights
and responsibilities of the rearing “…each parent shall be
provided access to all the medical, dental, religious or school
records of the child, the residence address of the child and of the
other parent and any other information that the Court deems
necessary.” (23 Pa. C.S.A. § 5309)
 Joint Access After Act 147?
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106
CONFIDENTIALITY OF RECORDS
PROFESSIONAL
STANDARDS
v.
TESTIMONIAL
PRIVILEGES
Rules of professional conduct
Rules of evidence
Protect patients
Protect patients
Founded on principles of ethics
Founded on individual’s right
to prohibit disclosure
Statutes prevent improper
disclosure of private
information
Not all disclosures protected –
child abuse
Privileged communications are
protected
Privilege is not absolute –
child abuse
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Title 49
Part 1 Department of State
Subpart A. Professional and Occupations
• Chapters 16 and 17
State Board of Medicine – Medical Doctors
• Chapter 21
State Board of Nursing
• Chapter 41
State Board of Psychology
• Chapters 47, 48 and 49
State Board of Social Workers, Marriage and Family Therapists and Professional
Counselors – Licensure of Marriage and Family Therapists
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
State Board of Medicine – Medical Doctors
§16.61 Unprofessional and Immoral Conduct
(a) A physician who engages in unprofessional or immoral
conduct is subject to disciplinary action under Section
41 of the Act (63 P.S. §422.41). Unprofessional conduct
includes, but is not limited to, the following:
(1) Revealing personally identifiable facts, obtained as the
result of a physician-patient relationship, without the prior
consent of the patient, except as authorized or required by
statute.
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Standards of Practice – Psychiatrists
The American Psychiatrist’s Association – Principles of
Medical Ethics: “A physician shall respect the rights of
patients, of colleagues, and of other health professionals,
and shall safeguard patient confidences within the
constraints of the law. ”
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Chapter 21: Standards of Nursing Conduct
“A registered nurse shall: Safeguard the patient’s
dignity, the right to privacy and the confidentiality of
patient information. This standard does not prohibit
or affect reporting responsibilities under 23 Pa. C.S.
Chapter 63 (relating to the Child Protective Services
Law), the Older Adults Protective Services Act (35
P.S. §§10211-10224) and other statutes which may
mandate reporting this information.”
(49 Pa. Code 21.18)
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Social Workers (63 P.S. §1911(a))
a)
Grounds. The Board may refuse, suspend, revoke, limit or restrict
a license or reprimand a licensee for:
 Being found guilty of immoral or unprofessional conduct.
Unprofessional conduct shall include any departure from or
failure to conform to the standards of acceptable and
prevailing practice. In proceedings based on this
paragraph, actual injury to the client need not be
established.
 For example, the National Association of Social Workers
(“NASW”) code of ethics could be used to establish the
standards for acceptable and prevailing practice.
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Psychologists (49 Pa. Code Chapter 41)
Principle 5. Confidentiality
“(a) Psychologists shall safeguard the confidentiality of information
about an individual that has been obtained in the course of
teaching, practice or investigation.”
“Information may be revealed with the consent of the clients
affected only after full disclosure to them and after their
authorization.”
“Psychologists shall exercise reasonable care to prevent their
employees, associates and others whose services are utilized by
them from disclosing or using information about the client.”
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Chapter 41. Psychologists
Principle 5. Confidentiality (Continued)
A psychologist may reveal the following information about a client:
(1)
(2)
(3)
(4)
Duty to warn.
Information discussed for professional purposes.
Classroom/Teaching/Writing: must de-identify the client.
Limits of Confidentiality – only with written permission of a
third person (“originator”) is a confidential communication
about the client disclosed.
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CONFIDENTIALITY OF RECORDS
PROFESSIONAL AND VOCATIONAL STANDARDS
Chapter 41. Psychologists
Principle 5. Confidentiality
(Continued)
(b) A psychologist may reveal the following information about a client:
(5) Explicit permission required to identify research subjects.
(6) Maintains confidentiality in the preservation and ultimate
disposition of records.
(7) Special care to protect persons (minors) who are unable to
consent.
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115
CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGES – FEDERAL LAW
“The federal privilege, which clearly applies to
psychiatrists and psychologists, also extends to
confidential communication made to licensed social
workers in the course of psychotherapy.”
United States Supreme Court
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CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGES – FEDERAL LAW
“The reasons for recognizing the privilege for treatment by
psychiatrists and psychologists apply with equal force to clinical
social workers…”
“Significant private interests support recognition of a ‘psychotherapist
privilege’:”
Effective psychotherapy depends upon an atmosphere of confidence
and trust.
The mere possibility of disclosure may impede successful treatment.
The mental health of the Nation’s citizenry, no less than its physical
health, is a public good of transcendent importance.
The likely endentiary benefit is modest.
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CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGES – PENNSYLVANIA
Physician-Patient – (42 Pa. C.S. §5944)
Psychiatrist/Psychologist – (42 Pa. C.S. §5944)
School Personnel – (42 Pa. C.S. §5945)
Sexual Assault Counselors – (42 Pa. C.S. §5945.1)
Spousal Communications to a Qualified Professional – (42
Pa. C.S. §5948)
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118
CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGES
Confidential Communications to Psychiatrists
or Licensed Psychologists
“No psychiatrist or person who has been licensed…to practice
psychology shall be, without the written consent of his client,
examined in any civil or criminal matter as to any information
acquired in the course of his professional services on behalf of
such client. The confidential relations and communications
between a psychologist or psychiatrist and his client shall be on
the same basis as those provided or prescribed by law between
an attorney and client.” (42 Pa. C.S. § 5944)
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119
CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGE: PSYCHOLOGISTS
(49 Pa. Code Chapter 41)
Principle 5. Confidentiality
“Psychologists may not, without the written consent of
their clients or the client’s authorized legal representative,
or the client’s guardian by order as a result of
incompetence proceedings, be examined in a civil or
criminal action as to information acquired in the course of
their professional service on behalf of the client.”
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120
CONFIDENTIALITY OF RECORDS
Rost v. State Bd. of Psychology
659 A. 2d 626 (Pa. Commw. Ct. 1995)
“In the present case, Rost did not even attempt to obtain the
consent of her client before releasing confidential information.
Although S.P. was eventually found to have waived the
psychologist- client privilege, this does not absolve Rost from her
psychologist-client privilege, this does not absolve Rost from her
ethical duty of confidentiality. Rost had a duty to either obtain
written permission to release the records from S.P. or challenge the
propriety of the subpoena before a judge. Rost did neither.”
Continued
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CONFIDENTIALITY OF RECORDS
Rost v. State Bd. of Psychology
659 A. 2d 626 (Pa. Commw. Ct. 1995)
“Since the language of Ethical Principle 5 of the Board
Regulations unambiguously prohibits this type of
conduct, we must concur with the Board’s Conclusion
that Rost violated…the Act. Additionally, we agree with
the Board that Rost’s breach of her duty of
confidentiality constitutes unprofessional conduct in
violation of…the Act.”
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CONFIDENTIALITY OF RECORDS
TESTIMONIAL PRIVILEGES: Sexual Assault
Counselors (42 Pa. C.S. § 5945.1)
TESTIMONIAL PRIVILEGES: Spousal
Communications to Qualified Professionals
(42 Pa. C.S.A. §5948)
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CONFIDENTIALITY OF RECORDS
Exceptions to Privilege Communication Restrictions
Child Abuse (23 Pa. C.S.A. § 6311)
Patient claim of personal injury due to malpractice/improper
conduct of provider
Motor Vehicle Laws –
• Impaired Drivers: 75 Pa. C.S.A. § 1517, 67 Pa. Code § 835
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SECTION IV.
SPECIAL ISSUES - CONFIDENTIALITY
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125
SPECIAL ISSUES - CONFIDENTIALITY
AGENDA
Special Situations
 Duty to Warn
 HIPAA
 Child Protective Services
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CONFIDENTIALITY OF RECORDS
Duty to Warn
Duty to Third Parties: General Rule
Physicians Duty: Diagnose and Warn of
Contagious Diseases
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CONFIDENTIALITY OF RECORDS
Duty to Warn – Psychologists
Principle 5(b)(1)
“This Code of Ethics does not prohibit a psychologist from taking reasonable
measures to prevent harm when a client has expressed a serious threat or intent
to kill or seriously injure an identified or readily identifiable person or group of
people and when the psychologist determines that the client is likely to carry out
the treat or intent. Reasonable measures may include directly advising the
potential victim of the threat or intent of the client. Because these measures
should not be taken without careful consideration of clients and their situation,
consultation with other mental health professionals should be sought
whenever there is time to do so to validate the clinical impression that the threat
or intent of harm is likely to be carried out.”
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CONFIDENTIALITY OF RECORDS
Duty to Warn – Mental Health Professionals
Emerich v. Phila. Ctr. for Human Dev. 720 A.2d 1032 ( Pa. 1998)
Administrator of the estate of the murder victim sues the Agency
alleging negligence.
The victim and patient (girlfriend and boyfriend) were receiving
treatment from Agency.
Patient suffered from a host of mental health conditions. Patient also
had a history of violent propensities and often threatened victim.
Victim terminates relationship. Patient is angry and in several therapy
sessions threatens victim.
Counselor advises victim not to return to old apartment. She does.
Patient shoots her.
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CONFIDENTIALITY OF RECORDS
DUTY TO WARN: Key Elements of Emerich
Specific and Immediate Threat of Serious Bodily Injury that
has been communicated to the Mental Health Professional.
Threat is against specifically identified or readily
identifiable victim.
Mental Health Professional determines or should determine
patient presents serious threat of violence to patient –
Mental Health Professional owes Duty of Care to Warn.
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CONFIDENTIALITY OF RECORDS
HIPAA-Federal Confidentiality Regulations
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PREEMPTION OF STATE LAW
GENERAL RULE
State law will be preempted if a standard,
requirement, or implementation specification of
the Federal Privacy Regulations is contrary to a
provision of State law.
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HIPAA APPLICABILITY
General Rule: If a Covered Entity conducts with
another covered entity (or within same entity),
using electronic media, a transaction identified
in rule, the transaction must be conducted as a
standard transaction.
Electronic Media Includes the Internet, extranets,
leased lines, dial up lines, private networks, and
transmission physically moved using magnetic
tape, disk, or CD media.
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TWO BASIC CONDITIONS FOR
HIPAA COMPLIANCE
1.
You meet the definition of a provider, plan or
clearing house.
2.
You exchange (send/receive) information
utilizing Standard Transactions.
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Transaction means the transmission of information
between two parties to carry out financial or administrative
activities related to health care.
It includes the following types of information
transmissions
1. Health care claims or equivalent
encounter information.
2. Health care payment and
remittance advice.
3. Coordination of benefits.
4. Health care claim status.
5. Enrollment and disenrollment in
a health plan.
6.
7.
8.
9.
10.
11.
Eligibility for a health plan.
Health plan premium
payments.
Referral certification and
authorization.
First report of injury.
Health claims attachments.
Other transactions that the
Secretary may prescribe by
regulation.
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WHO IS SUBJECT TO HIPAA?
 Health Plan
 Clearinghouses
 Health Care Providers
 Business Associates
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HIPAA PRIVACY: GENERAL RULE
A Covered Entity may not use or disclose
protected health information, except as
otherwise permitted or required under the
privacy regulations.
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AUTHORIZATION: PSYCHOTHERAPY NOTES
With a few exceptions, Covered Entities must obtain
the individual’s specific authorization to use or
disclose psychotherapy notes for most purposes, in
other words, to carry out treatment, payment, or health
care operations.
Psychotherapy notes are given heightened
protection because they are viewed as “unique types of
protected health information that typically are not used
or required for treatment, payment or health care
operations other than by the mental health professional
that created the notes.”
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PSYCHOTHERAPY NOTES DEFINED
"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.
Psychotherapy notes exclude medication prescription,
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."
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PSYCHOTHERAPY NOTES -AUTHORIZATIONS
A Covered Entity must obtain an Authorization for any
use or disclosure of psychotherapy notes except for:
 Use by the originator of the psychotherapy notes for
treatment purposes;

Use by the Covered Entity for its own training programs in
which students, trainees, or practitioners in mental health
learn under supervision to practice or improve their skills in
group, joint, family, or individual counseling; or
 Use by the Covered Entity to defend itself in a legal action or
other proceeding brought by the individual.
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PSYCHOTHERAPY NOTES –
AUTHORIZATIONS
(cont.)
Finally, Covered Entities may use or disclose
psychotherapy notes without an authorization when:
 Required for HIPAA enforcement purposes;
 Mandated by law;
 Needed for oversight of the health care provider who created the
psychotherapy notes;
 Needed by a coroner or medical examiner; or
 Needed to avert a serious and imminent threat to health or safety.
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PSYCHOTHERAPY NOTES AND MEDICARE
AUDIT OF 90806
 Medicare cannot require release of
psychotherapy notes
 Provider must produce documentation of
excluded information: start/stop time;
diagnosis; symptoms; prognosis; progress to
date
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HIPAA PERSONAL REPRESENTATIVES ADULTS AND MINORS
Rule: If under applicable law a person has
authority to act on behalf of an individual who is
an adult or an emancipated minor in making
decisions related to health care, a covered entity
must treat such person as a personal
representative with respect to PHI.
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HIPAA PERSONAL REPRESENTATIVES –
ADULTS AND MINORS
Exceptions to Rule:
• Minor consents to health care services and no
other consent is required under law
• Minor may lawfully obtain health care service
without consent of Personal Representative
• Personal Representative agrees to confidentiality
agreement between CE and minor
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CHILD PROTECTIVE SERVICES
4 Categories of Child Abuse
Non-accidental physical injury
Neglect
Sexual Abuse or exploitation
Serious mental injury
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CHILD PROTECTIVE SERVICES
Serious Mental Injury
A psychological condition, as diagnosed by a
physician or licensed psychologist, including the
refusal of appropriate treatment, that:
1.
2.
Renders a child chronically and severely anxious, agitated,
depressed, socially withdrawn, psychotic or in reasonable fear that
the child’s life or safety is threatened;
Seriously interferes with a child’s ability to accomplish ageappropriate developmental and social tasks.
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CHILD PROTECTIVE SERVICES
Child Abuse does not mean:
 Injuries that result solely from environmental factors that are
beyond the control of the parent … such as inadequate housing,
furnishings, income, clothing and medical care;
 Seriously held religious beliefs of the child’s parent, guardian or
person responsible for the child’s welfare. The county agency
shall closely monitor the child and shall seek court-ordered
medical intervention when the lack of medical or surgical care
threatens the child’s life or long-term health.
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CHILD PROTECTIVE SERVICES
Persons required to report suspected Child Abuse:
 A Persons who, in the course of employment, occupation or
practice of a profession, comes into contact with children
shall report or cause a report to be made when the person
has reasonable cause to suspect, on the basis of medical,
professional or other training and experience, that a child
under the care, supervision, guidance or training of that
person or of an agency, institution, organization or other
entity with which that person is affiliated is a victim of child
abuse, including child abuse by an individual who is not a
perpetrator. (23 Pa. C.S.A. § 6311-(a))
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CHILD PROTECTIVE SERVICES
Persons required to report:
Any licensed physician, osteopath, medical examiner, coroner,
funeral director, dentist, optometrist, chiropractor, podiatrist,
intern, registered nurse, licensed practical nurse, hospital
personnel engaged in the admission, examination, care or
treatment of persons, Christian Science practitioner, member of
the clergy, school administrator, school teacher, school nurse,
social services worker, day-care center worker or any other childcare or foster-care worker, mental health professional, peace
officer or law enforcement official.
§ 6311(b)
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CHILD PROTECTIVE SERVICES
Staff Members of Institutions: Staff members of
institutions or agency who are mandated/
reporters are required to immediately notify the
appropriate person in charge at the institution.
Such person shall assume responsibility and
legal obligation to report
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CHILD PROTECTIVE SERVICES
Persons permitted to report:
In addition to those persons and officials required to
report suspected child abuse, any person may make
such a report if that person has reasonable cause to
suspect that a child is an abuse child.
§ 6312
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CHILD PROTECTIVE SERVICES
 Privileged Communication
 Immunity from Liability
 Penalties for Failure to Report
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SECTION V.
RESPONDING TO SUBPOENAS, COURT
ORDERS AND LAW ENFORCEMENT
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RESPONDING TO SUBPOENAS
Definition
Subpoena: A command to appear at a certain
time/place to testify (deposition or trial)
Subpoena duces tecum: Requires production of
documents
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RESPONDING TO SUBPOENAS
Types of Subpoenas
•
PA Subpoenas
 For Attendance of a Party
 For Production of Documents
 Civil vs. Criminal
 At Trial or Deposition
•
Administrative Agency Subpoenas
•
Federal Civil Subpoena
•
Office of Inspector General (OIG)
•
Civil Investigating Demand
•
HIPAA Subpoena (DOJ)
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PENNSYLVANIA SUBPOENA
Issued by Prothonotary
Served reasonably in advance of the date
attendance required
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ADMINISTRATIVE AGENCY SUBPOENAS
Issued by professional board
Result of a complaint alleging a violation of an
act/regulation
May compel attendance by a witness or
production of documents at a hearing
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FEDERAL CIVIL SUBPOENA
 Federal court or a civil matter
 Production of records or testimony similar to state
subpoena
 Must include name of court, title of action, action
number
 Issued by court clerk or attorney
 Served within the district or within 100 miles of
trial/deposition/hearing
(Fed. R. Civ. P. 45)
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INSPECTOR GENERAL SUBPOENA
 For the production of documents
 Signals: audits, civil/criminal investigations, i.e.
health care fraud, social security fraud
(5 U.S.C. App 3 § 6(a)(4))
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CIVIL INVESTIGATORY DEMAND
 Not a subpoena, but is used like one
 Produce documents, answer interrogatories, give oral
testimony, or combination of above
 Only issued by the U.S. Attorney General’s offices
 Ex.: False Claims Act violations
(31 U.S.C. § 3733)
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HIPAA SUBPOENAS
 Issued by the Department of Justice (DOJ)
 Administrative subpoena
 Production of documents, or to give testimony on the production
and authentication of documents
 Range of 500 miles
 Issued for federal offenses relating to:





Healthcare fraud
Threats against the President (current, past, future)
Sexual exploitation of children
Attorney General
Threats against person protected by secret service
(18 U.S.C. § 3486)
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RESPONDING TO SUBPOENAS
Duty to Respond
Recipient must respond
Failure to respond – court may issue bench
warrant
Compel enforcement by Court Filing
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RESPONDING TO SUBPOENAS
Contesting a Subpoena
Contact attorney issuing subpoena:
•
To limit scope of subpoena
•
Be excused from compliance
Contact patient/patient’s attorney
File Motion to Quash with Court
(Con’t.)
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RESPONDING TO SUBPOENAS
Contesting a Subpoena
 Statutory Confidentiality Privileges
 DPW Regulations
 Professional Standards regarding confidentiality of
protected health information
 Subpoena fails to comply with legal requirements
 Fails to provide assurance under HIPAA
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CONFIDENTIALITY OF MENTAL HEALTH
TREATMENT RECORDS
§5100.35 Release to Courts
• No release of records in response to a Subpoena or other
Court discovery proceedings without patient consent or an
additional court order
• Duty to Inform Court
• Inform client/patient’s attorney
• Defense counsel for Provider may review records; minimum
necessary applies
• Employees are to be informed; violations include civil and
criminal liability
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RESPONDING TO SUBPOENAS
Motion to Quash
 Filed by your Attorney with the Court
 Judge reviews prior to or at time of trial
 Prepare Memorandum of Law to outline:





Unreasonable and oppressive
Statutory privilege
Professional standards
Case law
If production of documents, in camera review prior to disclosure
 Court grants motion, or
 Court orders you to testify/produce documents
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RESPONDING TO SUBPOENAS
Protective Order
 To protect party from unreasonable annoyance,
embarrassment, oppression or burden or expense include:
 Prohibiting Discovery/deposition
 Discovery shall be only on specified terms and conditions
 Discovery shall be only by a method of discovery other
than that selected by the party seeking discovery
 That certain matters not be inquired into, or that the scope
of the discovery be limited to certain matters
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(Con’t.)
167
RESPONDING TO SUBPOENAS
Protective Order
 That discovery be conducted with no one present
except persons designated by the court
 That a deposition after being sealed be opened only
by order of the court
 That the parties simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court
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RESPONDING TO LAW ENFORCEMENT
Court Orders
 Issued by a Judge
 Court must have jurisdiction
 Duty to respond
 Can challenge:
 Overly broad, oppression
 Privileged (in camera review)
 Search warrant
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RESPONDING TO LAW ENFORCEMENT
Search Warrant




Requested by law enforcement agency
Signed by a judge (Court order)
Probable cause exists
To search for and seize property that
constitutes evidence of a crime, contraband or
fruits of a crime
 Must specify date/time and specific items
 Immediate access to premises
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RESPONDING TO LAW ENFORCEMENT
Search Warrants
How to Respond
 Request to see and copy the search warrant
 Contact counsel immediately
 Verify it contains all necessary elements (date/time,
scope, objects to be seized, reason for search
 Remain with officers during search
 Copy/record all items seized
 Request receipt from officers
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171
DISCLOSURE TO LAW ENFORCEMENT HIPAA
 Pursuant to a HIPAA – compliant Authorization
 As required by law
 Court Order, Warrant, Subpoena, Grand Jury
Subpoena
 Administrative Request
 Help Identify/locate suspect, fugitive, material
witness, missing person
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DISCLOSURES TO LAW ENFORCEMENT HIPAA









Victims of a crime
Decedents
Crime committed on CE’s premises
Crime in Emergencies
Patient admits to committing a violent crime
To avert threat to others
National Security Purposes
“Health Oversight Agency”
Health, safety or healthcare of inmate
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SECTION VI.: ACT 62
THE AUTISM INSURANCE ACT
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THE AUTISM INSURANCE ACT
 Requires some private health insurance
companies licensed in Pennsylvania to cover
the cost of diagnostic assessment and
treatment of autism spectrum disorder and
services for children under the age of 21, up to
$36,000 per year
 Effective on the health insurance plan’s renewal
date on or after 7/1/09
(continued)
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THE AUTISM INSURANCE ACT
 Requires the Pennsylvania Department of Public
Welfare, DPW, to cover the cost of services for
individuals who are enrolled in the Medical
Assistance program and do not have private
insurance coverage, or for individuals whose
costs exceed $36,000 in one year; and
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176
AUTISM SPECTRUM DISORDERS
POLICY EXCLUSIONS
(e)(1) This section shall apply to any health insurance
policy offered, issued or renewed on or after July 1,
2009, in this Commonwealth to groups of fifty-one
(51) or more employees: Provided, that this section
shall not include the following policies:
(i)
(ii)
(iii)
(iv)
(v)
Accident only;
Fixed indemnity;
Limited benefit;
Credit;
Dental;
(continued)
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AUTISM SPECTRUM DISORDERS
POLICY EXCLUSIONS
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
Vision;
Specified disease;
Medicare supplement;
CHAMPUS (Civilian Health and Medical
Program of the Uniformed Services)
supplement;
Long-term care or disability income;
Workers’ compensation;
Automobile medical payment.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(7)
“Health insurance policy” means any group
health, sickness or accident policy, or
subscriber contract or certificate offered,
issued or renewed by an entity subject to one
of the following:
(i) This act
(ii) The act of December 29, 1972, P.L. 1701, No. 364),
known as the “health Maintenance Organization Act
(iii) 40 Pa. C.S. Ch. 61 (relating to hospital plan
corporations) or 63 (relating to professional health
services plan corporations)
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AUTISM SPECTRUM DISORDERS
COVERAGE
(3) “Autism spectrum disorders” means any of the
pervasive developmental disorders defined by the
most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM), or its
successor, including autistic disorder, Asperger’s
disorder and pervasive developmental disorder not
otherwise specified.
)
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WHAT DOES THE AUTISM
INSURANCE ACT COVER?
 Diagnostic assessment and treatment of autism
spectrum disorders, which include:
 Prescription drugs and blood level tests
 Services of a psychiatrist and/or psychologist (direct or
consultation)
 Applied behavioral analysis; and
 Other rehabilitative care and therapies, such as speech
and language pathologist, occupational and physical
therapists
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TREATMENT REQUIREMENTS
 Must be for an autism spectrum disorder;
 Must be medically necessary;
 Must be identified in a treatment plan;
 Must be prescribed, ordered or provided by a licensed
physician, licensed physician assistant, licensed psychologist,
licensed clinical social worker or certified registered nurse
practitioner; and
 Must be provided by an autism service provider or a person,
entity or group that works under the direction of an autism
service provider.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(14) “Treatment of autism spectrum disorders” shall
be identified in a treatment plan and shall
include any of the following medically
necessary pharmacy care, psychiatric care,
psychological care, rehabilitative care
and therapeutic care that is:
(i) Prescribed, ordered or provided by a licensed
physician, licensed physician assistant, licensed
psychologist, licensed clinical social worker or
certified registered nurse practitioner
(ii) Provided by an autism service provider
(iii) Provided by a person, entity or group that works
under the direction of an autism service provider
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AUTISM SPECTRUM DISORDERS
COVERAGE
(15)
“Treatment Plan” means a plan for the
treatment of autism spectrum disorders
developed by a licensed physician or
licensed psychologist pursuant to a
comprehensive evaluation or
reevaluation performed in a manner
consistent with the most recent clinical
report or recommendations of the
American academy of Pediatrics.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(12)
(13)
“Rehabilitative care” means professional
services and treatment, programs,
including applied behavioral analysis,
provided by an autism service provider to
produce socially significant improvements in
human behavior or to prevent loss of attained
skill or function
“Therapeutic care” means services provided by
speech language pathologists, occupational
therapists or physical therapists
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185
AUTISM SPECTRUM DISORDERS
COVERAGE
(2) “Autism service provider” means any of the
following:
(i) A person, entity or group providing treatment of
autism spectrum disorders, pursuant to a treatment
plan, that is licensed or certified in this
Commonwealth.
(ii) Any person, entity or group providing treatment of
autism spectrum disorders, pursuant to a treatment
plan, that is enrolled in the Commonwealth’s medical
assistance program on or before the effective date of
this section.
(continued)
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AUTISM SPECTRUM DISORDERS
COVERAGE
(4) “Behavior specialist” means an individual who
designs, implements or evaluates a behavior
modification intervention component of a
treatment plan, including those based on applied
behavioral analysis, to produce socially
significant improvements in human behavior or to
prevent loss of attained skill or function, through
skill acquisition and the reduction of
problematic behavior.
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187
AUTISM SPECTRUM DISORDERS
BEHAVIOR SPECIALISTS
(g)(1) The State Board of Medicine, in consultation with
the Department of Public Welfare, shall promulgate
regulations providing for the licensure or
certification of behavior specialists. Behavior
specialists licensed or certified by the State Board
of Medicine shall be subject to all disciplinary
provisions applicable to medical doctors as set
forth in the act of December 20, 1985 (P.L. 457, No.
112), known as the “Medical Practice Act of 1985.”
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AUTISM SPECTRUM DISORDERS
COVERAGE
(l) For purposes of this section, the term “autism service
provider” shall include any behavior specialist in this
Commonwealth providing treatment of autism
spectrum disorders pursuant to a treatment plan until
one (1) year from the time that regulations under
subsection (g) are promulgated or until three (3) years
from the effective date of this section, whichever is
later.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(2) An applicant applying for a license or certificate as a
behavior specialist shall submit a written application on
forms provided by the State Board of Medicine evidencing
and insuring to the satisfaction of the Board that the
applicant:
(i)
Is of good moral character;
(ii) Has received a master’s or higher degree from a board-approved,
accredit college or university, including a major course of study in
school, clinical or counseling psychology, special education,
social work, speech therapy, occupational therapy or another
related field;
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AUTISM SPECTRUM DISORDERS
COVERAGE
(iii) Has at least one year of experience involving functional behavior
assessments, including the development and implementation of
behavioral supports or treatment plans;
(iv) Has completed at least one thousand (1,000) hours in direct clinical
experience with individuals with behavioral challenges or at least
one thousand (1,000) hours’ experience in a related field with
individuals with autism spectrum disorders;
(v) Has completed relevant training programs, including professional
ethics, autism-specific training, assessments training, instructional
strategies and best practices, crisis intervention, comorbidity and
medications, family collaboration and addressing specific skill
deficits training.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(h)
An insurer shall be required to contract with
and to accept as a participating provider any
autism service provider within its service
area and enrolled in the Commonwealth’s
medical assistance program who agrees to
accept the payment levels, terms and
conditions applicable to the insurer’s other
participating providers for such service.
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192
AUTISM SPECTRUM DISORDERS
COVERAGE
(k)(1) Upon denial or partial denial by an insurer of a
claim for diagnostic assessment of autism
spectrum disorders or a claim for treatment of
autism spectrum disorders, a covered individual or
an authorized representative shall be entitled to an
expedited internal review process pursuant to the
procedures set forth in Article XXI, followed by an
expedited independent external review process
established and administered by the Insurance
Department.
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AUTISM SPECTRUM DISORDERS
COVERAGE
(2) An insurer or covered individual or an authorized
representative may appeal to a court of competent
jurisdiction an order of an expedited independent
external review disapproving a denial or partial
denial. Pending a ruling of such court, the insurer shall
pay for those services, if any, that have been authorized or
ordered until such ruling.
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SECTION VII.
LEGAL LIABILITIES
PROFESSIONAL OBLIGATIONS
AND STANDARDS
General
• Complaint filed with State Board; revocation or suspension
of license.
• Malpractice or professional liability.
• Administrative action: e.g. mandatory or permissive
exclusion from Medicare/Medicaid; other administrative
sanctions, including financial penalties.
• Criminal prosecution: Medicare/Medicaid Fraud.
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PROFESSIONAL OBLIGATIONS
AND STANDARDS
The Licensing Laws
• Statutes/Regulations
• Purpose. Protect the public.
• Scope of Practice. Licensing statutes define
professional services.
• Licensing Boards
• Revocation of License
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PROFESSIONAL BOARD INVESTIGATION
Initiated as a result of:
• Complaint filed by patient
• Disciplinary action against Provider by 3rd Party
Payor
• Referral by Administrative Agency: e.g., DPW
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PROFESSIONAL BOARD INVESTIGATION
• Assign investigator to conduct investigation
 Interview all concerned
 Make a recommendation to the Board Attorney
 All information confidential (even to Professional)
• Notice and Order to Show Cause
 Filed by the State Attorney
 List factual allegations
 Counts that detail the allegations
 Penalties (fines, license revocation/suspension)
 Procedures
1 Pa. Code § 33.1 – 35.25
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RESPONDING TO ORDER
• File a written answer to Order
 Address each count
 Defense
 Request for judgment
• No Adjudication is valid unless afforded reasonable notice of
a Hearing
 Before a hearing examiner within 90 days of receipt of Answer
 All relevant evidence, reasonable examination and cross-examination
• Prepare Briefs
 Findings of Fact/Conclusions of Law
 Memorandum of Law
2 Pa. C.S.A. § 501-508
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JUDICIAL REVIEW
 Hearing Examiner prepares Proposed
Adjudication and Order for the Board
 Board has right to accept/not accept – issues
decision within 180 days of decision by hearing
examiner
 Professional has right to appeal
63 P.S. §2201-2207
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DISCIPLINARY POWERS




Fines
Revocation or suspension of license
Reprimand
National Practitioners Data Bank Report
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PROFESSIONAL OBLIGATIONS
AND STANDARDS
Rost vs. State Board of Psychology – breached
patient/physician privilege
Morris vs. State Board of Psychology – sexual relations
with patient
Batoff vs. State Board of Psychology – misrepresented
degree – overstepped his competency
Grossman vs. State Board of Psychology – failed to
obtain consent of both parents in custody evaluation
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LEGAL CONSIDERATIONS IN QUALITY
• Negligence:
Failure to act in a reasonable
and prudent manner
• Malpractice:
Failure of a person with
specialized education
and training to act in a
reasonable and
prudent manner
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ELEMENTS OF NEGLIGENCE
 DUTY = Created through the existence of a
professional relationship with the patient
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II. BREACH OF DUTY
 Failure to
conform to the
required
standard of care.
Res Ipsa
Loquitur
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III. CAUSATION
 The patient (plaintiff) must prove by the greater
weight of the evidence that the wrongful
conduct was the proximate or direct cause of
the injury
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IV. DAMAGES
 Damages represent the injury to the
plaintiff.
 Damages are also the monetary
compensation which may be recovered by
someone who has suffered loss,
detriment, or injury to his person,
property, or rights through the act,
omission, or negligence of another.
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PROFESSIONAL LIABILITY
 Every person is responsible for the wrong or
injury done to another resulting from
carelessness
 Personal liability
Requires you to assume responsibility for patient
harm resulting from negligent acts
Cannot be relieved of liability by another
professional
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THEORIES OF PROFESSIOINAL
LIABILITY
 Respondeat Superior (“Let the Master Answer”)
= vicarious liability. An employer is
responsible for the negligent acts of its
employees if they were acting within the scope
of their employment
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EXAMPLES OF PROFESSIONAL
LIABILITIES
 State Board of Psychology: Duty to meet
criteria of 49 Pa. Code § 41.58 regarding
“Standards for the Employment and Supervision
of Unlicensed Persons with Graduate Training in
Psychology”
 Insurance/Managed Care Contracts: Often
prohibit billing for unlicensed personnel unless
specifically credentialed by insurance/MCO
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EXCEPTIONS TO RESPONDEAT
SUPERIOR
 Employers are not responsible for:
 the acts of independent contractor
 Ostensible Agency = provider appears to the
patient to be an agent of the organization, but is
not.
 Intentional acts
 When employee acted outside the scope of
his/her practice
 Vicarious Liability: indirect legal liability
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MEDICARE AND MEDICAID
ENFORCEMENT
WHO ARE THE MAJOR PLAYERS?
 Department of Justice (“DOJ”)
 Center for Medicare and Medicaid Services (“CMS”)
 Office of Inspector General (“OIG”)
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LEGAL ENVIRONMENT
WHO ARE THE MAJOR PLAYERS?
 PENNSYLVANIA MEDICAID FRAUD CONTROL UNITS
(MFCU)
 DPW: BUREAU OF PROGRAM INTEGRITY
 MANAGED CARE COMPANIES
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ESSENTIAL LAWS IMPLICATED
1. False Claims Act
2. Civil Money Penalties
3. Anti-Kickback Law and Regulations
(continued)
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ESSENTIAL LAWS IMPLICATED
4. Stark Law and Regulations
5. Medicare/Medicaid Laws/Regulations:
Medical Necessity; Documentation
6. Insurance contracts; non-credentialed staff
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ELEMENTS OF EFFECTIVE COMPLIANCE
PROGRAMS
1.
Development and distribution of written standards of conduct
and policies and procedures that promote the provider’s
commitment to compliance and address specific areas of
potential fraud
2.
Designation of a chief compliance officer with responsibility
for operating and monitoring the compliance programs
3.
Development and implementation of mandatory effective
education and training programs for all affected employees
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ELEMENTS OF EFFECTIVE COMPLIANCE
PROGRAMS
4. Maintenance of effective lines of communication, such as a
hotline, to receive complaints, and the adoption of
procedures to protect the anonymity of complainants
and to protect whistleblowers from retaliation
5. The enforcement of appropriate disciplinary action against
employees who have violated internal compliance policies or
applicable legal requirements
6. Use of audits and other evaluation techniques to monitor
compliance and assist in the reduction of identified problem
areas
7. The development of procedures to respond to detected
offenses and initiate corrective actions and initiate corrective
action
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