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What's wrong with HIPAA?

Posted By Ellen Ratner On 01/13/2013 @ 4:59 pm In Commentary | No Comments

The Wall Street Journal ran a Jan. 11 op-ed headlined “The Tragedy of Mental Health Law,” written by Lloyd Sederer, who is the medical director of the New York State Office of Mental Health.

He describes in detail what is wrong with our current HIPAA law. This is the law that protects a patient’s confidentiality. On the books, it’s great. Who wouldn’t want to protect someone’s privacy?

I certainly experienced a violation of medical privacy before HIPAA law. A consumer of our mental health services worked at Blue Cross and decided to make my insurance records her business, and there was nothing at the time I could do about it.

However, as Dr. Sederer points out, there are cases in which these privacy rules are problematic, such as when an aggressive man in his twenties refused an emergency-room psychiatrist permission to contact his family. Had the psychiatrist been able to make such contact, it would have been quite evident that the patient had a recent history of aggressive behavior. But under the law, the psychiatrist could not reach out to his family without the patient’s permission.

In addition to aggressive and violent patients, there are categories of mental health patients whose circumstances call for a change in HIPAA guidelines. The first is the type that Dr. Sederer describes: the aggressive and violent patient. There are others as well.

It is extremely difficult to treat schizophrenics and patients with other psychotic disorders where there is a vacuum of confidentiality. In the 1970s, there were innovative treatment techniques that made therapy something that took place in the community and not in a small individual office. One doctor managed to follow treatment-resistant patients around their local community. If “Fran,” the candy store lady, saw the patient in her store, she would talk to her about getting to her doctor. This would be followed by the local newspaper seller, etc., until the patient got the message that everyone in her community wanted her to see the doctor and take her medication.

Also in the 1970s, a very enterprising psychologist, Carolyn Attenave, had a system she called “family therapy networks.” She would put 50 or so people who knew a patient in a room and devise a strategy. This would include everyone from family members as well as the nurse at the hospital to the mailman. It was a brilliant idea, and it had great results. But confidentiality was thrown out the window. She received professional grief for her techniques, but they worked.

I was reminded of an example of how this might have worked this August. On a corner near Congress was a memorial to a homeless man named Peter Blis. He would sit near the gas station and say hi to almost everyone, and he would wish them well. Most everyone thought he was wonderful. He was clearly severely mentally ill, and his speech was what some in mental health call “word salad.” I tried to talk to him a few times and get him some help. He berated me and was as nasty as he could be. Peter was not dumb; word had it that he attended law school at some point. He also had a blog on the Internet. One of the obituaries about him said that his family tried to get him help.

I thought about trying to work with the local mental health agency, but I realized that under HIPAA laws anyone who had seen him on a professional basis was legally prohibited from talking to me.

Peter actually lost out because he had no treatment. Perhaps with treatment he could have used his intelligent brain more effectively.

Another mental health diagnosis that should not be subject to HIPAA is addiction. Addicts lie, and that is the nature of the disease. It doesn’t matter if the drug of choice is alcohol, prescription medication or street drugs. Inpatient treatment centers have “milieu” therapy, where patients and staff confront the addict about their behavior. But once a person is an outpatient, it is not possible.

If John sees Jane purchasing drugs and tells their mutual therapist, who then acts on this information by informing the patient and their family, the therapist could be in trouble.

Of course, once the patient lands in jail for buying drugs or drunk driving or stealing, then HIPAA laws do not apply. Then it is public record. This current law and policy is crazy.

Dr. Sederer suggests contacting the families of the mentally ill and asking for their suggestions about revisions to the law. It is a great idea, and I am sure that they would have a lot to say. I even bet there are several members of Congress with mentally ill family members who would gratefully participate.

It is time to make the it happen and change the law!

 


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