NCVHS Defines What Sensitive Info HIEs Should Sequester

Prepared by Krystyna Nowik, Esq.

The National Committee on Vital and Health Statistics (NCVHS) released an advisory letter to the Department of Health and Human Services (HHS) on November 10 addressing recommendations for the management of sensitive information in the HIE context.  NCVHS, which is the statutory public advisory body for HHS, explored and identified categories of sensitive health information requiring new technologies and methods for segmenting and protecting such information in electronic health records.  The advisory letter, which coordinates with Health IT Policy Committee recommendations and requirements, addresses preliminary categories of sensitive information, including:

  • The new HITECH cash payments (“payment in full” and “out-of-pocket” restriction);
  • Genetic information;
  • Psychotherapy notes;
  • Substance abuse treatment records;
  • HIV information;
  • Sexually transmitted disease information;
  • Sexuality and reproductive health information;
  • Certain health information for minors, where protected by state law;
  • Mental health information; and
  • Certain circumstances where the entire medical record may be deemed sensitive (e.g., domestic violence, victims of violent crime).

In addition, the NCVHS advisory letter includes five core recommendations for HHS.  Among these are identifying and publishing best practices for managing categories of sensitive information, and investing in research for enhancing health information exchange and electronic health record capabilities and in pilot tests and projects for assessing feasibility, effects, efficacy and the costs and benefits of such capabilities. 

The NCVHS recommendations will serve as a platform for HHS to conduct research, develop technologies and implement pilot tests and projects with an eye towards understanding the feasibility, technical standards, effects on patient care, and the costs and benefits of managing sensitive information.  As NCVHS stated in the advisory letter,

[o]ur nation is committed to deploying interoperable health record to improve patient health, health care, and public health.  Patient trust is critical to patient participation in this deployment, and, therefore, we must invest in technologies that will promote this trust.

Drug and Alcohol Treatment Info "Ok" to Go

Over the summer, the ONC and SAMHSA (Substance Abuse and Mental Health Services Administration) held a session to discuss the application of the Substance Abuse Confidentiality Regulations to electronic health information exchange through HIOs (Health Information Organizations).  David Blumental, National Coordinator, ONC, and Joy Pritts, Chief Privacy Officer were among the distinguished panel leading the discussion on this very important topic.

In short,SAMHSA and ONC support the use and disclosure of 42 CFR Part 2 information through an HIO, as long the Part 2 Rules are followed.  Although SAMHSA's position is concerning to some who fear that including such sensitive information for HIE will make it susceptible to breaches and improper disclosures, the agency found that there are significant positive health benefits that patients could gain from allowing an HIO to facilitate proper exchange of their records electronically.

For an INCREDIBLY helpful Q&A Guidance document regarding how SAMHSA believes Part 2 Drug & Alcohol Treatment records can be appropriately used and disclosed through an HIO, visit their website at http://www.samhsa.gov/healthprivacy/, or click "Continue Reading" below for copy of their Questions & Answers on this topic ....

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"Psychotherapy Notes" may Come Out From the Drawer

Currently, "psychotherapy notes" remains a very, very narrowly defined term under the Privacy Rule, and does not include general mental health information, including progress notes.  The exact definition is:

Psychotherapy notes means 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 [specifically] excludes medication prescription and 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.  

See 45 CFR 164.501.  In the Preamble to the Privacy Rule, the government discusses that these are essentially the notes in the psychiatrist's drawer.

However, back in February 2009, the HITECH Act (H.R. 1) required that a study be completed to determine whether the definition of psychotherapy notes should include:

Test data that is related to direct responses, scores, items, forms, protocols, manuals, or other materials that are part of a mental health evaluation, as determined by the mental health professional providing treatment or evaluation in such definitions and may, based on such study, issue regulations to revise such definition.

see H.R. 1 Section 13424(f) on pg 165.  On October 7th, HHS and SAMSA (Substance Abuse and Mental Health Services Administration) will debate the topic of whether and to what extent the definition of "psychotherapy notes" should be expanded.  In addition to this potential expanded definition, the Proposed HITECH Rule would require that a statement be included in the NPP that disclosure of psychotherapy notes requires prior patient written authorization.  It may go without saying that if prior written authorization will be required before any mental health tests or other data is released, this will be a major shift in how such information currently flows between health care providers.