Alcohol and Drug Abuse Records

Records containing information pertaining to alcohol and drug abuse patients are subject to special protection under federal statute. Given the particular nature of these records and stricter federal guidelines, it is curious to note that only some of the vendors describe these differences and offered additional guidance in their policy documents. At a minimum, NMHA believes that MCO policies should describe circumstances in which the release of information pertaining to the provision of drug or alcohol related services can be made without patient authorization.

Given the sensitive nature of this information, best practices include a description of the parameters and conditions for communication with employers. Generally, this communication occurs only with the consumer's consent and only for two purposes: (1) the verification of consumer's involvement in the program, and (2) a general description of progress. One vendor includes this caveat when discussing requests from employers:

• Disclosure is made only when the treating therapist, Service Line Director, Program Director or Director of Medical Records has reason to believe, on the basis of past experience (which may consist of a written statement by the employer), that the information will be used for the purpose of assisting in the rehabilitation of the patient and not for the purpose of identifying the individual as a patient in order to deny him/her employment or advancement because of his/her history of drug or alcohol abuse.

While providing guidance to staff is a best practice, NMHA is concerned about the reliance on the vague term "past experience," especially since it may be based on a statement by the employer-a worst practice. In addition, there is no discussion about protocols when the therapist disagrees with MCO staff about the release of information to the employer, let alone when the consumer objects-again, a worst practice.

Treatment of a Minor/Minor's Ability to Consent

State law often dictates the age of consent for minors. A few MCOs go to great lengths to describe these situations and provide clear guidance for practitioners and other employees.

Best practices include:

• A thorough description of the legal age of consent;

• The role of parents in the treatment process;

• Guidelines for documenting that attempts were made or not made to solicit parental involvement based on clinical judgement; and

• Clear language about the financial obligation of parents only for the treatment in which they participate.

Sample best practices language is provided below:

• A minor 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis if:
  
  1. He or she is considered mature enough to participate intelligently in the program; and

  2. There is danger of serious physical or mental harm to the minor or others if he or she is not permitted to participate; or

  3. The minor is an alleged victim of incest or child abuse.
  
  
• Encouragement of inclusion of parents should occur, but clinical information regarding an adolescent age 12 or older cannot be given to parents without the patient's consent.

Another best practice describes a state law exempting an adolescent from parental consent in the event that s/he is considered an emancipated minor. This policy describes in great detail the conditions contained in the law whereby a patient is considered an emancipated minor.

Policies that do not provide specificity or guidance to employees are of little use and may be considered worst practices. The following is an example:

• There are conditions when clinical or claim information on an adolescent cannot be released to the parent or legal guardian without the patient's consent (no written guidance is provided to understand these conditions).

Release of Information to Family Members

Disclosure to family members is usually allowed only in emergency situations or with proper release from the consumer. Sample language of common policies (neither best nor worst, but standard) follow:

• Patient information cannot be released to a spouse or other family members without the patient's consent.

• Patient information regarding an adult child cannot be released to a parent without the patient's consent.

• If the patient is a minor, patient information cannot be released without the consent of the parent or the patient's legal guardian.

The best practices we identified included detailed provisions describing these situations and stipulating appropriate requirements. Such language emphasized processes to obtain consent, as well as protocols for responding to family requests for information in situations where the consumer does not consent or is incapable of providing consent.

• Respond initially in a noncommittal fashion to avoid the implicit disclosure of the patient's presence in treatment.

• Determine the scope of the request and notify the patient of the request.

• If the patient refuses to consent to disclosure, the information may not be disclosed.

We only identified one MCO policy that addressed circumstances when the consumer is unable to consent to release of information. It allowed the requester to be told if the consumer was in a facility and if/when s/he is released. The family member is also informed if there is a death.

HIV Testing and Status

At a minimum, a signed release must be obtained before disclosure of HIV status is permitted, and usually disclosure is based on a "medical need to know" basis. Only two MCOs we identified addressed this situation in a comprehensive way, which we consider a best practice. The following is an excerpt from one of them:

• Extreme caution must be exercised around disclosure/redisclosure of any and all HIV-specific information. No person should disclose the identity of any person who has undergone an HIV test, or the results of such tests, in a manner that permits identification of the person who was tested, unless required to do so as defined by applicable law. The expectation of privacy, or the applicable right to privacy, fosters disclosure of HIV status only when necessary and protects against misuse of such information. No release of HIV-specific information is permitted without documented approval of a Medical Director who has consulted legal counsel.

The Role of Health Care Agents

We only identified formal protocols from one MCO that provides guidance on the role of appointed health care agents in consenting to release on a patient's behalf-a best practice. It stipulated that this permission must be present in the document appointing the guardian/agent. In addition, this policy further stipulated that a copy of the document appointing the person as guardian/agent must be attached to the signed release form. The excerpted language is provided below:

"Patients 18 years of age or older may provide consent to release of information from his/her record. A court-appointed guardian of the person and a health care agent appointed in a valid advance directive may also consent to release of information if authorized in the document appointing the guardian/agent. If consent is provided by a guardian or health care agent, a copy of the document appointing that person should be attached to the release."

"Top 10" Key Findings and Recommendations

Methodology

NMHA Standards for Responsible Management of Consumer Information (Position Statement P-34)

Maintenance of Consumer Information

Medical Records and Session Notes

Managed Care Staff Policies

Protocols For Clinicians and Their Staff

Special Populations and Circumstances