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Title: Ethical Issues in Treatment Author: DR. NEVA CHAUPPETTE Last modified by: slarkins Document presentation format: On-screen Show (4:3) Other titles – PowerPoint PPT presentation

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Title: Ethical

Ethical Confidentiality Issues in SUD
  • Sherry Larkins, Ph.D.
  • UCLA Integrated Substance Abuse Programs

Training Roadmap
  • What are the ethical issues we face as providers?
  • What are the confidentiality issues we face as
    providers? How does integrated care affect client
    confidentiality? How do HIPAA, 42 CFR-part 2, and
    state confidentiality policies influence

Changing Landscape of SUD Tx.
  • ACA and other regulations are moving SUD Tx.
    toward more coordinated and integrated care.
  • SUD tx. will be delivered in a variety of
    different settings, including mental health and
    PC facilities.
  • One perceived barrier to care integration the
    laws/policies that govern SUD, MH and PC
    treatment differ (42 CFR vs. HIPAA)
  • This may affect how providers share information
    with others who may be involved with client care.
  • Integrated care entities will require access
    toSUD info to provide best care.

Ethical Issues in Substance Abuse Treatment
  • What are some examples of ethical issue in a
    substance abuse program that you have
    experienced? Witnessed?

  • Ethics codes laws that guide professionals in
    helping clients in a fair, respectable,
    objective, and humane way
  • Personal values guide moral conduct appropriate
    for work settings
  • Understanding the connection between law and
    ethics and feeling a responsibility to integrate
    both appropriately

  • Ethical behavior requires a familiarity with
    laws, and the professions philosophy and code of
  • Sensitivity to the moral dimensions of counseling
    and your personal principles
  • Understanding your agencies policies and
    procedures for client services (conflict of
    interest, referrals, chain of command, roles,

Professional Boundaries
  • The emotional and physical line that gives our
    clients space to focus on themselves - not on us.
  • The limits that control the professionals power
    so that clients are not hurt.
  • The parameters that keep the professional as
    objective as possible.

Professional Boundaries
  • Providers responsibility to maintain
    professional boundaries
  • Set proper limits
  • Maintain a treatment focus
  • Be aware of thoughts/feelings generated by the
    client, or about the client
  • Seek supervision know what to do with these

What if a client wants a different kind of
What Type of Relationship?
  • Social/Friendship
  • Business/Bartering
  • Gift-giving
  • Romantic/Sexual

Handling clients who want a different type of
  • Set firm limits
  • Explain why you are setting the limits
  • Try not to be rejecting as you set clear limits

Sexual Relationships Legal and Ethical Issues
  • Illegal in all 50 states to ever engage in any
    form of sexual contact with a client
  • Sexual contact can include intercourse, oral
    sex, fondling, any other kind of sexual touching,
    nudity, kissing, spanking, verbal suggestions,
    innuendoes, or advances.
  • Considered exploitation by healthcare
  • Damage to Clients mental health
  • Loss of trust in helping professions
  • Loss of objectivity to provide appropriate tx.
  • Client focus is on counselor rather than his/her
  • New code allows for client-counselor relations 5
    years after termination of professional

  • What is your goal in providing the client with
  • What will the information mean to the client?
  • Are you sending confusing messages?
  • Are you sure that it is meeting a client need and
    not a personal need?
  • Is there another way to accomplish your goal
    without personal disclosure?
  • Are you okay with EVERYONE in the clinic knowing
    the information?

  • How do you respond?
  • Have you ever been in a gang?
  • Are you married?/Have a boy/girlfriend?
  • Do you have children?
  • Have you ever used drugs?
  • What kind of drugs did you use?
  • Are you in recovery?
  • What part of town do you live in?
  • How old are you?
  • Do you make a lot of money?
  • How much do they pay you here?

Confidentiality Issues in Substance Abuse
  • Important legal and ethical responsibility
  • Preserving privacy fosters trust and encourages
    help-seeking behavior.
  • Balance between a patients legitimate desire to
    maintain privacy of sensitive information and
    permitting the sharing of information that will
    improve treatment or public health or safety.

Confidentiality in SUD Treatment
  • Involves
  • 42 CFR, part 2
  • State-based confidentiality policies
  • Additional Protections for HIV infection, DV,
    genetics, etc
  • Not meant to prevent info-sharing.
  • Federal laws are a baseline states may adopt
    more strict regulations.
  • State laws vary widely, presenting challenges
    fordeveloping unified policy solutions across
  • Also difficult for technology vendors to develop

Confidentiality in SUD Treatment
  • Questions
  • How does 42 C.F.R., Part 2 relate to other laws,
    such as HIPAA and State-specific confidentiality
  • Who has to follow 42 C.F.R., Part 2? What
    information does it protects?
  • What disclosures are allowable and prohibited by
    42 C.F.R., Part 2? By HIPAA
  • What precautions need to be taken when sharing
    information across agencies?

  • Health Insurance Portability and Accountability
    Act of 1996
  • Protects health coverage for workers/families
    when they change/lose their job.
  • Gives privacy and security of PHI (Protected
    Health information)
  • Administrative simplification a way to
    standardize information sharing within a complex
    healthcare system.
  • Establishes national standards for electronic
    health care transactions sets minimum privacy

What is Protected Health Information (PHI)?2
  • Identifies the client
  • Health Information
  • Any information that is oral, written,
    electronic, created or received by health care
    provider, health plan, public health authority,
    employer, insurer, or others.
  • Relating to past, present or future physical or
    mental health status, health care, and payment
    for such services.

42 CFR Part 2
42 U.S. Code 290dd42 CFR Part 2
  • Regulations governing confidentiality of alcohol
    and drug abuse patient records
  • First issued 1975, revised 1987
  • Designed to help deal with the stigma of
  • Imposes restrictions upon disclosure of PHI for
    clients enrolled in any federally-assisted
    alcohol and drug abuse program
  • Requires notification of confidentiality, consent
    forms, prohibition of re-disclosure

Confidentiality in Substance Abuse Treatment
  • Confidentiality is necessary because without that
    guarantee, many individuals with substance abuse
    problems would be reluctant to participate fully
    in treatment

What Programs Must Follow 42 C.F.R., Part 2?
  • Individual/Entity which provides alcohol/drug
    diagnosis, treatment, or referral for treatment
  • An identified unit within a general medical
    facility which provides alcohol/drug diagnosis,
    treatment, or referral for treatment OR
  • Medical personnel or other staff in a general
    medical care facility whose primary function is
    the provision of alcohol/drug diagnosis,
    treatment, or referral for treatment.

Examples of 42 C.F.R., Part 2 Programs
  • Free-standing alcohol/drug treatment programs
  • Student Assistance Programs in a school
  • PCP whose provision of these services is their
    principal practice
  • Employee Assistance Programs
  • Medical personnel or other staff in a general
    medical care facility whose primary function is
    the provision of alcohol/drug diagnosis,
    treatment, or referral for treatment or as part
    of a specific unit within general medical
    facility identified as providing these services.

Examples of 42 C.F.R., Part 2 Programs
  • ALSO, Must be federally-assisted
  • Gets federal assistance, even if not for
    alcohol/drug services
  • Conducted by federal government
  • Tax exempt by I.R.S.
  • Receives Medicaid or Medicare reimbursement
  • Authorized, licensed, certified or registered by
    Federal Govt.
  • Certified as a Medicare provider
  • Registered with DEA to dispense controlled
    substances for treatment of SUD, including
    clinicians with DEA registration who use
    controlled substances like benzos, methadone,
    buprenorphine for detox or maintenance.

Case Example
  • Dr. Smith works in a Hospital E.R.
  • Hospital receives federal assistance
  • Patient receives care for a minor injury from a
    car-accident where s/he was driving and under the
    influence of alcohol/drugs.
  • Dr. Smith calls specialized alcohol/drug unit to
    come to the E.R. to Screen patient for substance
    use issues and, if necessary, conduct a brief
  • Patient leaves E.R. before specialized team
  • Is Dr. Smith responsible for adhering to 42
    C.F.R., Part 2?

Case Example
  • Correct Answer
  • NO
  • Dr. Jones works in a General Medical Facility,
    but not an identified Specialized Unit whose
    primary function is to provide alcohol/drug abuse
    diagnosis, treatment, or referral for treatment
  • 42C.F.R., Part 2 would have applied IF
  • The Medical Facilitys Primary Function was to
    provide alcohol / drug services
  • Patient stayed and received Screening/Assessment
    by Specialized staff
  • Patient had received alcohol/drug services from
    E.R. employee whose Primary Function is the
    diagnosis or referral for alcohol/drug treatment

General Rule of Disclosures
  • A Program covered by 42 CFR, part 2 may ONLY
    release information or records that will directly
    or indirectly identify a client as a substance
    abuser or treatment patient
  • With a knowing and written CONSENT from the
    participant, AND
  • Other EXCEPTIONS(explained below)

42 C.F.R. Part 2 - Allowable Disclosures
  • Audit/evaluation/research
  • Crimes (or threats of) on program premises or
    against program personnel
  • Initial reports of suspected child abuse or
  • Court order meeting specifications of 42
  • Written authorization/ Consent
  • Qualified Service Organization
  • Internal communication (need to know)
  • No patient-identifying information
  • Medical emergency

Allowable DisclosuresWritten Authorization/Conse
  • Consent must include
  • Name of Program making disclosure
  • Name and title of individual or org. permitted
    to receive info.
  • Name of patient
  • Purpose of disclosure
  • How much what kind of info. will be disclosed
  • Signature of Patient and date of Consent
    wet/fax/scan/copy OK
  • Statement of Patients Right to Revoke and Rules
    of Redisclosure
  • Date of Expiration (Governed by State Law - No
    longer than 1 Yr)
  • Source 42 CFR 2.11

Allowable DisclosuresWritten Authorization/Conse
  • Must be in writing (not oral/verbal)
  • Must be current / not expired
  • Even with consent, no info. obtained can be used
    to criminally investigate or prosecute a
  • Must include Redisclosure notification notice
    that program may not redisclose patient info
    unless further disclosure is expressly
    permitted by the written consent of the person.
  • Sample Consent Forms at
  • Source 42 CFR 2.11

Allowable DisclosuresQualified Service
Organization (QSO)
  • Definition An Organization that provides
    services to a program, such as
  • data processing Electronic Medical Records
    info exchange
  • Holding/Storing patient data
  • dosage preparation laboratory analyses
  • bill collecting
  • legal, medical, accounting, or other
    professional services
  • Source 42 CFR 2.11

Allowable DisclosuresQualified Service
Organization (QSO)
  • A written agreement with a program under which
    that person
  • (1) Acknowledges that in receiving, storing,
    processing or otherwise dealing with any patient
    records from the programs, it is fully bound by
    these regulations and
  • (2) If necessary, will resist in judicial
    proceedings any efforts to obtain access to
    patient records except as permitted by these
  • Source 42 CFR 2.11

Allowable DisclosuresInternal Communications
  • May disclose patient-identifying information
    without consent within a program IF the recipient
    needs the info to provide alcohol / drug
  • If program is part of a larger multi-service
    organization, disclosure of info can only be made
    to personnel involved in records, billing, or
    direct clinical care of patient.
  • Cannot be shared with program or agency
    personnel who do not need it in specific
    connection to their duties.
  • Source 42 CFR 2.11

Allowable DisclosuresNo Patient-Identifying
  • Ok to disclose info. that does NOT identify a
    patient in any way.
  • Identifying info includes name, address, SSN,
    DOB, D/C date, date of death, phone numbers,
    account numbers, unique identifying
    characteristics, codes or numbers.
  • Source 42 CFR 2.11 HIPAA

Allowable DisclosuresMedical Emergency
  • Disclosure (and redisclosure) of
    patient-identifying info is permitted to medical
    personnel -but not family- if patient is
    experiencing a medical emergency.
  • Documentation of disclosure must occur
    immediately afterward
  • Name of medical personnel and healthcare facility
    to who disclosure was made
  • Name of individual making disclosure date time
  • Nature of Medical Emergency
  • Source 42 CFR 2.11

Allowable DisclosuresAudit/Evaluation/Research
  • Program can disclose patient-identifying info.
    without consent
  • Researchers But they are prohibited from using
    it for any other purpose or from redisclosing it
    except back to the program (data/report must be
  • Auditor/Evaluator May only use info for
    program audit and eval and redisclose only back
    to program govt. agency overseeing
    Medicare/Medicaid audit or court during a
    program (not a patient) investigation.
  • Source 42 CFR 2.11

Allowable DisclosuresCrimes on Program
Premises/Against Program Personnel
  • If a crime is committed, or threatened, on
    program premises or against program personnel,
    staff may disclose identifying information
  • suspects name, address, last known whereabouts,
    and status as a patient in the program.
  • Duty to warn Governed by State Laws (see
  • Source 42 CFR 2.11

Allowable DisclosuresCrimes on Program Premises
What about Duty to Warn?
  • Duty to Warn refers to an obligation to alert
    others (e.g. law enforcement) when someone
    threatens to commit a future crime, or confesses
    to a past crime.
  • Governed by State Law
  • Tarasoff v. Regents of U. of CA other states do
    not require warning (e.g. HI, more permissive) .
  • There are ways to warn without violating 42
    C.F.R., Part 2
  • Anonymous or non-patient identifying report
  • Court order (extremely serious crime) Source
    42 CFR 2.11

Allowable DisclosuresChild/Elder Abuse
  • Reporting of Child Abuse/Neglect and Elder Abuse
    are governed by State Laws.
  • 42 C.F.R., Part 2 allows for initial report and
    written confirmation of the report.
  • BUT, does not permit programs to disclose
    records and patient-identifying information for
    an on-going investigation, without a Court Order.
  • Source 42 CFR 2.11

Allowable DisclosuresCourt Order
  • A court may issue a special court order
    authorizing a program disclose
    patient-identifying info, but must follow special
  • Before issuing order, court must Provide notice
    to patient program, and provide opportunity for
    patient/program to make oral or written statement
    to the court.
  • Must have good cause for the disclosure. Good
    cause is defined as
  • Public interest and need for disclosure outweigh
    an adverse effect disclosure will have on
    Patients, Doctor-Patient Relationship,
    Effectiveness of Program Services.
  • No alternative way of getting the information.

Allowable DisclosuresCourt Order
  • Court-ordered disclosures have Limits Only
    access to info essential to fulfill purpose of
  • Must be restricted to persons who need the info
    for that purpose.
  • Court should take any other steps necessary to
    protect patients confidentiality (e.g., sealing
    court records) .
  • They may NOT authorize disclosure of
    confidential communications by patient to
    program, unless
  • Necessary to protect against threat to life or
    serious bodily injury
  • Necessary to investigate or prosecute extremely
    serious crime
  • In connection w/proceeding in which patient has
    already presented evidence re confidential

Allowable DisclosuresCourt Order
  • OH NOWhat do I do? I just received a
  • Do not ignore! Remember You may only disclose in
    response to subpoena if you receive
  • Patient Consent, or
  • Special Court Order (NOT a subpoena signed by
  • Do NOT release without Special Court Order
  • Read subpoena all accompanying documents to
    understand what subpoena is asking program to do
  • Seek advice from attorney
  • Source 42 CFR 2.11

Allowable DisclosuresCourt Order
  • You have the right to appear and object
  • Contact patient to see if s/he wants to consent
    (unless subpoena involves criminal prosecution of
  • If NO Patient consent, inform person who issued
    subpoena that 42 C.F.R., Part 2 prohibits program
    from complying, ask them to withdraw subpoena and
    seek Special Court Order.
  • If unsuccessful and no attorney, appear on
    appropriate date (subpoena details date, time,
    and place of hearing), explain 42 C.F.R., Part 2,
    and request the judge quash subpoena. Bring
    copy of regs. Source 42 CFR 2.11

Allowable DisclosuresCourt Order
  • OH NOWhat do I do? I just received a Search
    or Arrest Warrant
  • Do not forcibly resist!
  • Neither type of warrant is sufficient under 42
    C.F.R. Pt. 2 to permit or require disclosure
    only Special Court Order!
  • Explain that program cannot cooperate without
    Special Court Order (show officers a copy of the
  • Notify a lawyer
  • Ask to speak to prosecuting attorney or
    commanding officer and repeat your explanation
    (stress that illegally seized records will not be
    admissible in court
  • Try prevention (form relationship w/local police)
    Source 42 CFR 2.11

Bottom Line
  • Confidentiality laws, regulations and policies do
    not preclude the sharing of information for care
    coordination, as long as proper written consents
    are in place.
  • Confidentiality concerns should not stop
    addiction, mental health or primary care
    providers from providing quality care to
  • Instead of viewing confidentiality as a barrier,
    focus on educating clients on info sharing to
    ensure better quality services and communication
    between providers.

TIPS on Confidentiality and Disclosure
  • The clients rights and the limits of
    confidentiality should be explained at the
    beginning of treatment.
  • Educate patients about informed consent and the
    importance of information sharing among all of
    the HC providers at the time of treatment.
  • Respect decision of patients who opt out of info.
  • Information should only be released with the
    clients or guardians permission client
    information should not be communicated outside of
    the treatment team.
  • Implement use of routine consent forms that
    include each necessary organization or provider,
    state/federal regs., signed.
  • Encourage patients to expect communication,
    collaboration, shared tx. plans and joint

  • What are some practices you do to ensure that
    Protected Health Information (PHI) is secured?

  • Do not leave papers containing PHI lying around
    where others can see them
  • At end of workday clear desk or other exposed
    areas of PHI and place I secure location (file,
    cabinet, desk drawer).
  • Do not talk about patient PHI in public areas
  • If you take work home dont leave it in a place
    accessible to people not agency employees, keep
    locked in a briefcase or in car/trunk.

HIPAA vs. 42 CFR Part 2
HIPAA vs. 42 C.F.R., Part 2
  • The laws cover a lot of the same material.
  • Some points of difference more specific or more
    recent rule usually applies.
  • For the SUD Treatment providers, in most cases
    the rules of 42 CFR Part 2 are more stringent
  • In some cases HIPAA is more stringent.

Disclosure for Payment
  • HIPAA PERMITS disclosure without patient consent
    for the purpose of payments.
  • 42 CFR Part 2 PROHIBITS these disclosures with
    out patient consent.
  • SUD/AOD providers must follow 42 CFR Part 2.

Re-disclosure of Information
  • HIPAA is silent on this topic.
  • 42 C.F.R., Part 2 requires that a statement
    prohibiting re-disclosure accompanies the patient
    information that is disclosed.
  • SUD/AOD providers must follow 42 C.F.R., Part 2.

Disclosures to Other Providers
  • HIPAA allows, but does not require, programs to
    make disclosures to other healthcare providers
    without authorization.
  • 42 CFR Part 2 limits this to medical emergencies.
  • SUD/AOD providers must follow 42 C.F.R., Part 2.

Medical Emergencies
  • HIPAA allows health care providers to inform
    family members of the individuals location and
    condition without consent in emergency
    circumstances or if a person is incapacitated.
  • 42 CFR Part 2 limits this disclosure to medical
    personnel ONLY.
  • SUD/AOD providers must follow 42 C.F.R., Part 2.

Disclosure to Public Health
  • HIPAA permits disclosure to a public health
    authority for disease prevention or control, or
    to a person who may have been exposed to or at
    risk of spreading a disease or condition.
  • 42 C.F.R., Part 2 prohibits these disclosures
    unless there is an authorization, court order, or
    the disclosure is done with out revealing patient
  • SUD/AOD providers must follow 42 CFR Part 2 BUT
    California state laws compel notification.

Right to Access Records
  • HIPAA REQUIRES a covered program to give an
    individual access to his/her own health
    information (with few exceptions).
  • 42 CFR Part 2 gives programs DISCRETION to decide
    whether to permit patients to view or obtain
    copies of their records, unless they are governed
    by a state law that gives right to access.
  • SUD/AOD providers must follow HIPAA.

Recent Federal Changes HITECH 2009
  • In 2009, the American Recovery and Reinvestment
    Act of 2009 (ARRA) was signed into law.
  • Health Information Technology for Economic and
    Clinical Health Act (HITECH) was a key part of
  • Expanded and changed some regulations to promote
    the adoption and meaningful use of health
    information technology.
  • HITECH Act addresses the privacy and security
    concerns associated with the electronic
    transmission of health information and electronic
    medical records.

The role of Health IT
  • HIT enables integrated tx. by linking programs,
    services and providers
  • HIT can help providers
  • Communicate and collaborate between providers and
  • Track progress of those who leave a program
  • Reduce redundancy between programs and providers
  • Increase delivery of Evidence-based care
  • Extend the efficiency of the workforce.
  • Increased accessibility to health records raises
    questions of how to ensure pt. confidentiality
    and trust.
  • Functionality to promote integrated care while
    protecting privacy and confidentiality.

  • HIPAA Privacy, Security, Enforcement Rules
    apply directly to business associates (BAs)
  • Expanded definitions of BAs (HIOs, e-Prescribing
    Gateways, data transmission services), and
    requirement of Revised agreements to strengthen
  • Marketing, Fundraising, Sale of PHI
  • Stronger patient rights
  • Stronger enforcement penalties
  • Breach notification
  • Revised Notice of Privacy Practices
  • Revised BA agreements

Thank You!
  • Sherry Larkins, Ph.D.
  • UCLA Integrated Substance Abuse Programs