New Rules Set National Uniform Standard for Protecting Privacy of Medical Records

In December President Clinton issued comprehensive rules governing the privacy of individual medical records. Overall, the new rules appear to be responsive to many of the issues advocated for by the American Psychiatric Association. They give consumers new rights to inspect their medical records, to request corrections of errors, and to receive a list of disclosures of medical information that have been made for purposes unrelated to treatment and payment. The rules apply to all physicians, hospitals, pharmacies, and health insurance plans. They will not become effective until December 28, 2002, in order to give health care providers time to develop systems that conform to the new requirements.

The rules replace the often confusing maze of state laws and regulations with a uniform national standard. Such a standard was mandated by the Health Insurance Portability and Accountability Act of 1996, which instructed Congress to develop a standard to govern access to electronic medical records by August 1999. When Congress was unable to pass health privacy legislation by the deadline, responsibility for drafting the regulations shifted to the Secretary of Health and Human Services. In October 1999 Secretary Donna Shalala issued draft regulations. More than 52,000 comments on the proposed rules were submitted.

The rules apply broadly to paper records, electronic records, and oral communications between health care providers and health plans. Informed consent is generally required. Health care providers, including individual practitioners, medical facilities, and health maintenance organizations, must obtain informed consent from patients before disclosing protected health information about them for purposes of treatment, payment, or health care operations. The rule also stipulates that providers may condition the provision of treatment on the patient's providing consent.

Although APA and other advocates for mental health services favored requiring a specific consent for each disclosure, the regulations allow for a prospective blanket consent at the time of entry into a health plan. Under a blanket consent, a patient may "consent" to subsequent disclosures without knowing the information that is revealed or the identity of the recipient. In addition, the new rules do not require that patients be notified in advance of disclosure. APA advocated for a requirement that providers obtain consent for each disclosure of psychotherapy notes, a requirement included in the final rules. Moreover, the rules state that health plans cannot base eligibility for benefits on a patient's not authorizing disclosure of psychotherapy notes.

The new rules will help families obtain information necessary to provide care, such as information about the diagnosis, treatment plan, medications, side effects, prognosis, and community resources. The rules allow medical information to be shared with "next of kin" without written consent, unless the consumer expressly objects to such a disclosure.

APA and other advocates have expressed concern that the final rules allow hospitals, providers, and insurers to share personal medical information with law enforcement officials. Although the rules require law enforcement officials requesting records to obtain a subpoena or warrant, advocates have pushed strongly for requiring an order from a judge as a condition for allowing law enforcement officials to have access to private medical information. Subpoenas and warrants may be obtained by law enforcement officials without a neutral magistrate's reviewing the case.

The rules establish a new legal right for individuals to see and copy their own health information, except in cases in which the health care provider can show that such access would endanger the life or safety of any individual. Providers must adhere to specific time limits in acting on a patient's request for access to and corrections of records. Providers must also establish methods for reviewing denials of such requests.

The new rules permit states to pass legislation providing stronger protections for medical records. The Secretary of Health and Human Services is authorized to impose civil monetary penalties against providers that fail to comply and criminal penalties for wrongful disclosures of protected information. Civil fines are capped at $25,000 for each calendar year for each provision that is violated. Criminal penalties are graduated, increasing if the offense is committed under false pretenses or with intent to sell the information or reap personal gain. The maximum penalty is ten years in prison and a $25,000 fine.

2001 Federal Budget Increases SAMHSA Funds for Mental Illness and Substance Abuse Programs

Despite concerns about congressional cuts, federal mental health and substance abuse programs fared well in the fiscal year 2001 budget, which was approved by Congress in December. No agency or institute saw cuts in the funds they requested, and many received substantial increases over last year. Congressional appropriations for programs operating under the Substance Abuse and Mental Health Services Administration (SAMHSA) increased by 11.6 percent, compared with a 7 percent increase last year. Funds for research on mental illness and substance abuse within the National Institutes of Health increased by 14 percent in the 2001 budget, the same percentage increase provided in the 2000 budget.

Table 1 shows the level of funding for federal mental health and substance abuse programs for fiscal years 2000 and 2001. Nearly $3 billion was appropriated for SAMHSA, which represents an increase of more than $300 million over fiscal year 2000. The budget of the Center for Mental Health Services (CMHS) was increased by nearly 24 percent. For two years in a row, Congress has provided large increases to the CMHS block grant program—a 23.3 percent increase last year and 17.9 percent this year. The block grant program received an additional $64 million this year, or $4 million above the sum that President Clinton requested in his proposed budget. The additional funds will allow each state $1 million to help provide services for adults with severe mental illness and children with serious emotional disturbances.

Congress provided states and communities with additional discretionary funding for children with serious emotional disturbances through the CMHS children's mental health program, which received a 10.9 percent increase in funding.

Programs of regional and national significance at CMHS develop and disseminate improved prevention and intervention strategies for the mentally ill population. These programs received the largest increase—nearly 50 percent—after a 44 percent increase in fiscal year 2000. The additional funding constitutes $50 million more than the Clinton administration requested for the program this year. Community mental health centers received $1.168 billion, or $150 million more than last year, a 12.8 percent increase (data not shown).

Approved in the CMHS budget was $10 million for 22 grants to local mental health providers to improve services to youths with posttraumatic stress disorder. Another $10 million is earmarked for local projects to improve mental health screening in settings other than treatment facilities, such as jails, and to develop jail diversion programs for nonviolent mentally ill offenders. The CMHS program that supports minority fellowships in mental health received an additional $2 million this year. A total of $7 million will fund grants in 2001 for treatment of mental health disorders related to HIV-AIDS, such as dementia and depression.

The budget for the Center for Substance Abuse Treatment was increased by 5.9 percent in 2001, compared with a 3.4 percent increase in fiscal year 2000. For the second consecutive year, the center's programs of regional and national significance received a substantial increase—19.5 percent this year and 25.6 percent in 2000. Congress approved $53 million to provide targeted services expansion and capacity building to community-based substance abuse treatment programs, in particular to those that provide services to minority communities affected by HIV-AIDS.

Under the Center for Substance Abuse Prevention, grants to high-risk youth, which Congress threatened to cut, will be maintained at current funding levels.

Table 1 also shows funding for the three institutes of the National Institutes of Health that conduct research on mental illness and substance abuse. This year's increases of 13.6 percent for the National Institute of Mental Health and 13.7 percent for the National Institute on Drug Abuse are similar to those of last year. The 16.2 percent boost for the National Institute on Alcohol Abuse and Alcoholism is more generous than in past years—13.4 percent in the fiscal year 2000 budget. Total funding for the three institutes, about $2.3 billion, was increased by 14 percent in the new budget, an increase almost identical to that provided in the fiscal year 2000 budget.

News Briefs

Guide to filing an ADA charge: The Center for Mental Health Services (CMHS) has released a guide to help people with psychiatric disabilities who believe they have experienced employment discrimination file a charge under the Americans With Disabilities Act (ADA). The guide provides information in a question-and-answer format about how the ADA employment discrimination charge process works and what has happened when persons with psychiatric disabilities have filed claims in the past. It explains when, where, and how to file a charge and illustrates each step in the process with examples. It outlines the typical course of the investigation process and describes factors that influence whether a persons will benefit from filing a charge. Copies of the guide can be obtained free of charge by calling the CMHS Knowledge Exchange Network at 800-729-2647; TTY 301-443-9006.

Administrative psychiatry certification examination: Each year the American Psychiatric Association's (APA's) committee on psychiatric administration and management conducts the examination for certification in administrative psychiatry. The written portion is given in December, and successful candidates take the oral section in May during APA's annual meeting. The deadline for receipt of completed applications, including required letters of reference, for the 2001 written examination is August 31, 2001. To obtain more information and an application, contact the committee in care of APA's Office of Continuing Medical Education, 1400 K Street, N.W., Washington, D.C. 20005; 202-682-6109. Information is also posted on the APA Web site at www.psych.org.

Administrative Psychiatry Award: The American Psychiatric Association (APA) and the American Association of Psychiatric Administrators jointly sponsor the annual Administrative Psychiatry Award. The award honors an individual who has demonstrated extraordinary competence in psychiatric administration over a substantial period and who has achieved a national reputation as an administrator. To be eligible a person must have directed a comprehensive program for the care of patients with mental illness and must have contributed significantly to the field of psychiatric administration through activities such as teaching and research. APA membership and board certification are additional requirements. Nominations may be made by any interested person, who should write a letter indicating why the candidate should be given consideration. A copy of the nominee's curriculum vitae must be enclosed. The recipient will present a special lecture at the next APA annual meeting. The deadline for nominations is August 1, 2001. Material should be sent to the Chairperson, Committee on Psychiatric Administration and Management, APA Office of Education, 1400 K Street, N.W., Washington, D.C. 20005.

NARSAD is seeking grant applications: The National Alliance for Research on Schizophrenia and Depression (NARSAD) is seeking grant applications. Awards of up to $50,000 a year for two years will be given for research into causes, cures, treatment, and prevention of severe neurobiological disorders. Research must be relevant to schizophrenia, major affective disorders, or other serious mental illnesses. Applicants should be scientists at the academic level of associate professor or equivalent who have won national competitive support as a principal investigator. Guidelines and application forms can be downloaded from the NARSAD Web site at www.narsad.org. The submission deadline is March 5, 2001. Contact Audra Moran, director of the research grants program at NARSAD, 60 Cutter Mill Road, Suite 404, Great Neck, New York 11021; 516-829-5576; [email protected].

People & Places

Award:Agnes Hatfield, Ph.D., founding member and past-president of the National Alliance for the Mentally Ill, was presented the Rosalynn Carter Caregiving Award on October 26 at the Rosalynn Carter Institute for Human Development in Americus, Georgia. The annual award is given to an individual who has made outstanding contributions to improving the lives of caregivers of relatives with serious mental illness or disabilities. Dr. Hatfield was recognized for her research, writing, professional training and education, and support of families who care for relatives with major mental illnesses.

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