Editor's Note: Due in part to the stigma that is sometimes associated with behavioral healthcare, information relating to mental health or substance use disorders is given greater protection under both federal and state law than most other types of health records. In a new report for the Blue Cross Blue Shield of Massachusetts Foundation, summarized below, Manatt Health reviews the primary Massachusetts and federal privacy laws relevant to the exchange of information among physical and behavioral health providers. The report also assesses the technological and operational challenges that providers face in seeking to integrate care through enhanced data exchange. To download a free copy of the full report, click here.
The efforts of providers to share information to facilitate behavioral health integration are in tension with multiple federal and Massachusetts laws that were developed in an era that predates electronic information exchange and robust care coordination. These laws can make it difficult for providers to share records even when patients want their healthcare professionals to have greater access to their information. But the laws reflect the reality that behavioral healthcare treatments may still carry greater stigma than other types of healthcare, and, therefore, greater privacy protections in this area may be necessary.
The benefit of added protection is that it keeps potentially sensitive information private and, therefore, may encourage patients to seek treatment. In addition, there is evidence that individuals with a behavioral health condition may experience differential medical treatment, as a result of the stigma attached to their behavioral health diagnosis. The greater protection of behavioral health information may help mitigate this issue, but these laws also may limit the ability of providers to share information regarding patients who are jointly under their care, thereby impeding care coordination and possibly worsening health outcomes. These obstacles to information sharing are at odds with the growing array of behavioral health initiatives that are designed to encourage behavioral and physical healthcare providers to work collaboratively to provide better care to patients.
The Need to Change the Siloed Treatment Model
There is growing recognition that the siloed treatment model restricting regular communication between physical and behavioral healthcare providers must change. The Institute of Medicine has highlighted the need for better care coordination among behavioral and physical healthcare providers. Providers in both the behavioral and physical health fields now feel strongly that high-quality care requires care integration and coordination. Patients suffering from severe mental illness and addiction often have complex medical problems that cannot be properly addressed in isolation from their behavioral health needs.
A review of the primary Massachusetts and federal privacy laws relevant to the exchange of information among physical and behavioral healthcare providers and an assessment of the technological and operational challenges of integrating care through enhanced data exchange yields the following conclusions:
- The Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule does not create substantial barriers to information exchange among physical and behavioral healthcare providers for routine treatment, care management and quality improvement purposes.
- The main legal barriers to data exchange arise under federal regulations governing substance use disorder treatment programs—42 C.F.R. Part 2—and Massachusetts laws governing mental health information. The Part 2 rules require patient consent for most disclosures for treatment purposes, and the Massachusetts law could be interpreted as imposing a similar limitation.
- In addition to legal barriers, the primary obstacles to information sharing include variable adoption of electronic health records across behavioral healthcare providers, the absence of true interoperability between the electronic health record systems maintained by different providers, and the failure of electronic health systems to segregate records subject to heightened privacy restrictions.
- The impact of the current regulatory obstacles could be mitigated to some degree if:
- 1. Massachusetts provided clarifying guidance on the interpretation of ambiguous mental health regulations;
- 2. Providers adopted procedures for exchanging data, such as a "consent to access" model, that align with existing legal restrictions; and
- 3. The government promoted beneficial technological developments, such as more widespread electronic health record acquisition, stricter interoperability standards, and enhanced data segmentation capabilities.
- More effective behavioral health information exchange among all of a patient's treating providers will require changes to current laws and regulations. Key changes could include revisions to the Part 2 regulations to simplify the patient consent process and broader treatment exceptions under the Massachusetts mental health information laws.
Working with the behavioral health community, Massachusetts policymakers can take steps to further promote the sharing of behavioral health information. Nevertheless, given the need to continually balance patient privacy with integration efforts, addressing challenges in this area is likely to require ongoing engagement and continued discussions among all stakeholders.