5. New technology and new legislation
are changing the way we share client
health information with clients and
other care providers
The Big Picture
W Osborn 4/22 5
6. Sharing case information with clients is
becoming…
Increasingly
Mandatory
Increasingly
Immediate
Increasingly
Unmediated
• Clients will have
more rights to their
health information
and to ease of
access of their
health information
• Clients will have more
access to their health
information more
quickly than ever
before
• Clients will have
fewer boundaries
and hurdles to
accessing their
health information -
without middlemen
W Osborn 4/22 6
7. The CURES Act adds new layers of
complexity to the HIPAA landscape
W Osborn 4/22 7
8. Only Specific “Actors” are Affected Currently
Care facilities Clinicians CMS Providers
• Hospitals
• Community mental
health providers
• Health facilities
receiving specific
federal grants
• Clinical psychologists
• Clinical social workers
• MHPs working under
these clinicians
• Anyone receiving
payment from
Medicare or
Medicaid
W Osborn 4/22 8
9. Private Practice Clinicians
are Not Yet Affected
It is highly likely that all
MHPs will fall under these
rules in the future
• By Affiliation
• By Law
W Osborn 4/22 9
11. Navigating New Waters: PHI
• PHI – Protected Health Information
• Individually identifiable health information covered
by the HIPAA Privacy Rule
• If it’s part of a client’s paper record, it’s PHI
• EHI and ePHI – Electronic Protected Health Information
• If the client’s PHI is electronic, it’s ePHI
• Covered by the HIPAA Privacy Rule just like PHI
• MHP – Mental Healthcare Provider
W Osborn 4/22 11
12. Navigating New Waters: EMRs
• EHR and EMR – Electronic Health Records or
Electronic Medical Records
• Any electronic collection of a client’s health
information
• Describes the system of information, not the
individual pieces of PHI
• PHI is stored and delivered through EMRs
• The CURES Act regulates certified EMRs
W Osborn 4/22 12
13. Navigating New Waters: Information Blocking
• Information Blocking
• The biggest legislative addition to our field since
the Privacy Rule?
• “To prevent, materially discourage, or otherwise
inhibit" clients from accessing their ePHI
• Requirements and Exceptions
W Osborn 4/22 13
14. New Language Needed
• New legislation and new
terminology is largely
driven by technological
change
• MHPs will need to respond
with new language for
ethics and practices
W Osborn 4/22 14
17. Legislative Components - HIPAA
HIPAA Title 45 or 45 CFR CURES Act and ONC Final Rule
Enacted with goal to "improve portability and continuity
of health insurance coverage in the group and
individual markets, to combat waste, fraud, and abuse
in health insurance and health care delivery, to
promote the use of medical savings accounts, to
improve access to long-term care services and
coverage, to simplify the administration of health
insurance, and for other purposes."
W Osborn 4/22 17
18. Legislative Components – 45 CFR
HIPAA Title 45 or 45 CFR CURES Act and ONC Final Rule
Federal regulations of public welfare,
DHHS, health care access, and health
care technology
W Osborn 4/22 18
19. Legislative Components – CURES Act
HIPAA Title 45 or 45 CFR CURES Act and ONC Final Rule
Overarching philosophy and direction:
sharing information between actors
engages patients, supports care
coordination, and supports public health
W Osborn 4/22 19
22. New Requirements,
New Goals
New legislation and
requirements will change
• The way we document
• The way we share
documentation
• Our goals in documenting
W Osborn 4/22 22
24. What Information Must Be Shared?
• The main components for mental health care practice:
• Diagnoses and problem statements
• Assessments and plans of treatment
• Goals
• Clinical notes including progress notes
• Demographics
W Osborn 4/22 24
26. A Growing List of Data Elements
All EHI defined in CFR 171.102 New Data Elements
• Starting October 6, 2022
• Any information a provider “used,
in whole or in part, by or for the
covered entity to make decisions
about individuals” and the care
they receive
• As EHRs grow, so does the type of
data they create, provide, or carry
• Example: the inclusion of SDOH,
“Social Determinants of Health”-
related conditions like housing
status, lack of transportation, and
lack of food security
W Osborn 4/22 26
27. What Is Information Blocking?
• The information which cannot be withheld from clients
must be free of "information blocking"
• Information blocking means a practice that—
• Except as required by law or covered by an
exception, is likely to interfere with access,
exchange, or use of electronic health information
(EHI); and If conducted by a health care provider,
such provider knows that such practice is
unreasonable and is likely to interfere with the
access, exchange, or use of EHI.
W Osborn 4/22 27
28. Information Blocking Does Not Cover
Psychotherapy Notes Preparation of Legal Documents
• “Process Notes”
• Psychotherapy notes are NOT
part of a client's case file
• May not include EHI elements
• Still need to be kept and may
be subpoenaed
• Information compiled in
reasonable anticipation of
legal proceedings is to be kept
separate from a client’s case
file
W Osborn 4/22 28
30. Most Relevant Exceptions for MHPs
Preventing Harm Privacy Exception Security Exception
• It will not be information
blocking for an actor to
engage in practices that are
reasonable and necessary
to prevent harm to a patient
or another person, provided
certain conditions are met.
• Narrow definition –
“distress” is not sufficient
cause to block information
• It will not be information
blocking if an actor does
not fulfill a request to
access, exchange, or use
EHI in order to protect an
individual’s privacy,
provided certain
conditions are met.
• Especially important in
couples’ and family work
• It will not be information
blocking for an actor to
interfere with the access,
exchange, or use of EHI
in order to protect the
security of EHI, provided
certain conditions are
met.
• The EMR must be secure
before sharing EHI
W Osborn 4/22 30
31. Using Clinical Judgment
Withholding information from
clients cannot be done based
on a rule which is applied to all
cases. Actors must use clinical
judgment on a case-by-case
basis, must have a clear
motivation for helping client,
and must document their
process
W Osborn 4/22 31
33. Changing Our Assumptions
Clients WILL
read their notes
Clients are main
purveyors of
their notes –
clinicians are not
Clinicians will help
clients navigate their
notes – not decide
what information
clients have access
to
W Osborn 4/22 33
34. What MHPs Need to Consider
Audience Data Types Language
Who will be reading our
notes?
• Clients
• Other clinicians and
non-mental health care
providers
• Compliance officers
• Insurance companies
What will be in our
notes?
• Mental health
assessments
• Problem statements
• Progress indicators
• New types of data
How do we document
mental health
practice?
• Non-judgmental
• Non-paternal
• Client-centered
• Clear for each
audience
W Osborn 4/22 34
35. What MHPs Need to Consider
Values Goals Ethics
What are our values as
clinicians?
• Beneficence and non-
maleficence
• Client-centered care
• Client autonomy
What are our goals as
clinicians?
• Collaborating with
other health care
providers
• Client involvement in
documentation
process
How will our ethical
codes need to adapt?
• Additional informed
consent (ACA A.2)
• Increase in
“reasonable access”
to documents (ACA
B.6.e)
W Osborn 4/22 35
36. New Legislation + New Technology +
New Values, Goals, & Ethics =
New Responsibilities for MHPs
W Osborn 4/22 36
37. An Ever-Changing
Landscape
• Know what you know
• Know what you don’t know
• Challenge your assumptions
• It takes time for change to
be codified into law,
regulations, and ethics
• Be on the front end of
change! And Remember….
W Osborn 4/22 37
38. FOCUS ON THE
CLIENT,
NOT ON THE
NOTES!
Don’t be a stock photo
counselor –
Be a client-centered
counselor !
W Osborn 4/22 38
39. Navigating the Cures Act Final Rule – HealthIT.gov
(1) ONC Webinars Page
(2) “What Healthcare Providers Need to Know About Information Sharing &
the Information Blocking Regulation” Webinars
(2a) Webinar 1 from 9/14/21 (and Slides)
(2b) Webinar 2 from 11/17/21 (and Slides)
(2c) Webinar 3 from 2/2/22 (and Slides)
Resources
W Osborn 4/22 39
40. Resources
W Osborn 4/22 40
“Strategies for complying with the new ONC data sharing rules, including collaborative
documentation” - Webinar from The National Council for Mental Wellbeing and MTM
Services (and slides)
• A very accessible overview of the new regulation sand some thoughts on implementing
new documentation strategies in behavioral health clinics
Health Care provider definition and cross-reference table
• A guide to who is currently or soon will be subject to information blacking regulations
The Cures Act Legislative Text
45 CFR Text
HIPAA Texts (CFR 160, 162, and 164)
41. Resources
W Osborn 4/22 41
Centers for Medicare and Medicaid Services
The most up to date technical information on CMS's rules are here on their website. A lot of
this information is highly technical-technological and aimed at those working on EHR/EHS
platforms.
• FAQ provided by CMS
• One of the most recent CMS updates (December 2021). Mostly technical information.
42. Resources
W Osborn 4/22 42
Approaching Ethical Questions
Blease, C., Torous, J., Kharko, A., DesRoches, C. M., Harcourt, K., O'Neill, S., ... &
Hägglund, M. (2021). Preparing patients and clinicians for open notes in mental health:
qualitative inquiry of international experts. JMIR mental health, 8(4), e27397.
Blease, C. R., O'Neill, S. F., Torous, J., DesRoches, C. M., & Hagglund, M. (2021). Patient
access to mental health notes: Motivating evidence-informed ethical guidelines. The Journal
of nervous and mental disease, 209(4), 265-269.
Blease, C. R., O'Neill, S., Walker, J., Hägglund, M., & Torous, J. (2020). Sharing notes with
mental health patients: balancing risks with respect. Lancet Psychiatry, 7(11), 924-5.
Crichton, P., Douzenis, A., Leggatt, C., Hughes, T., & Lewis, S. (1992). Are psychiatric case-
notes offensive? Psychiatric Bulletin, 16(11), 675-677. doi:10.1192/pb.16.11.675
43. Resources
W Osborn 4/22 43
Approaching Ethical Questions continued
Schwarz J, Bärkås A, Blease C, Collins L, Hägglund M, Markham S, Hochwarter S
Sharing Clinical Notes and Electronic Health Records With People Affected by Mental Health
Conditions: Scoping Review. JMIR Ment Health 2021;8(12):e34170. DOI: 10.2196/34170
Sharing Behavioral Health Notes with Patients
Transparent Notes in Psychiatry
Detailed or lean therapy records?
The 21st Century Cures Act Final Rules (CAMFT Attorneys)
