COMMUNITY MENTAL HEALTH FOR CENTRAL MICHIGAN
RECIPIENT RIGHTS – CHAPTER 7
SAFEGUARDING THE RIGHTS OF RECIPIENTS – SECTION 300
CONFIDENTIALITY AND DISCLOSURE – SUBJECT 004
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I. PURPOSE: To establish policy and procedure regarding safeguarding releasing/disclosing recipient records and information obtained in the course of providing services to a recipient.
II. APPLICATION: All mental health services programs of Community Mental Health for Central Michigan and any contracted agencies.
III. REFERENCES:
A. Administrative Rule 330.7051.
B. Mental Health Code 330.1748 (1-10) 330.1750, 330.1748a, and 330.1946.
C. Health Insurance Portability and Accountability Act of 1996 (HIPAA) 45 CFR Part 160 and 164.
D. 42 CFR Part 2.
IV. DEFINITIONS:
A. CONFIDENTIAL Information pertaining to a recipient of mental health services. This INFORMATION includes all information acquired in the course of providing mental
health services whether contained in the recipient case record or
elsewhere. (NOTE: All privileged information is confidential, but not
all confidential information is privileged.)
B. HOLDER OF The Agency and designated person responsible for maintaining the
THE RECORD recipient file. The CMHCM Executive Director shall be the holder of the
record for all recipients receiving services from CMHCM direct programs
and may designate another person to act in his/her place and with his/her authority as holder of the record.
C. PRIVILEGED A communication made to a psychiatrist or psychologist in connection
COMMUNICATION with examination, diagnosis, or treatment of a recipient or to another person while the other person is participating in the examination, diagnosis, or treatment or a communication made privileged under applicable state or federal law. Independent privileges exist which protect confidential
communications made by a recipient to a certified social worker, social worker, social work technician or agency employing them. Communications by the recipient and advice given are both protected. Licensed Professional Counselors are also granted privilege under Public Act 421.
V. POLICY:
A. It is the policy of this Board that information in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall be kept confidential and shall not be open for public inspection. Any person receiving confidential information shall disclose the information to others only to the extent that is consistent with the authorized time-limited purpose for which the information was obtained. All pages released by the agency shall be stamped “Not for Re-release Unless Specifically Authorized.” Any information released to a recipient shall be stamped “Recipient Copy.”
B. Special efforts will be made to ensure that children without permanent family ties and persons who may be vulnerable due to mental disability or functional illiteracy will be protected from making uninformed or inappropriate decisions about release of information covered by this policy.
C. For case records made subsequent to March 28, 1996, information made confidential by Section 330.1748 of the Mental Health Code shall be disclosed to a competent adult recipient upon the recipient’s request. Release is done as expeditiously as possible but in no event later than the earlier of 30 days from the request or prior to release from treatment. (Section 330.1748[1] of the Mental Health Code).
D. In addition to the protections afforded recipients of service through the Michigan Mental Health Code, all recipients shall have protection under HIPAA (45 CFR, Parts 160 and 164). Along with these protections, individuals diagnosed with a co-occurring disorder shall have the additional protections afforded under 42 CFR, Part 2.
VI. PROCEDURE:
A. A summary of Section 330.1748 of the Michigan Mental Health Code will be included in each consumer’s case record.
B. A record shall be kept of all disclosures and shall minimally include the following:
1. What information was released.
2. To whom it was released.
3. The specific need and purpose for which the information is to be used
4. A statement indicating how disclosing information is germane to the stated purpose of the request.
5. The subsection of Section 330.1748 of the Mental Health Code, or other state law, under which the disclosure was made.
C. A Release of Information form signed by one or more of those listed below will be obtained whenever there is a need for having confidential information released to another person or agency:
1. Recipient.
2. Recipient’s guardian with authority to consent.
3. Parent with legal custody of a minor recipient.
4. Court approved personal representative or executor of the estate of a deceased recipient.
D. An authorization to release information will contain:
1. Recipient’s name and birth date.
2. The name of the program authorized to release the information.
3. The agency or person to whom the information is to be released.
4. The specific information to be disclosed.
5. The purpose for which the information is to be released.
6. The date at which the authorization is to expire.
7. A notice that further disclosure must be consistent with the authorized purpose and within the time period for which the information was released.
8. Verification that the person authorizing the release has been informed of the conditions under which the information may and shall be released as set forth in Section 330.1748 of the Mental Health Code.
E. The separate programs of Community Mental Health for Central Michigan Board, including contract agencies, may share information pertaining to treatment, payment and health care operations within their own system of services without compromising the recipient’s right to confidentiality. The sharing of information is based on the minimum necessary.
F. All recipients will be given an opportunity to object to disclosure consented to on a recipient’s behalf, such as by a parent or guardian. The Person-Centered Planning process will be suggested if necessary to resolve differences of opinion between the recipient and his/her guardian.
G. Except as otherwise provided in Section C of this policy or Section 330.1748a or 330.1748 of the Mental Health Code, when requested, information made confidential by the above noted section, shall be disclosed without delay only under one or more of the following circumstances:.
1. Pursuant to an order or a subpoena of a court of record or a subpoena of the legislature, unless the information is privileged by law.
2. To a prosecuting attorney as necessary for him/her to participate in a proceeding governed by the Mental Health Code.
3. To an attorney for the recipient, with the consent of the recipient, the recipient’s guardian with authority to consent, or the parent with legal custody of a minor recipient.
4. When necessary in order to comply with another provision of the law.
5. To the Department of Community Health if the information is necessary for that office to discharge a responsibility placed upon it by law.
6. To the office of the Auditor General when the information is necessary for that office to discharge its constitutional responsibilities.
7. To a surviving spouse of the recipient, or if none, to the individual or individuals most closely related to the deceased recipient within the third degree of consanguinity as defined in civil law, for the purpose of applying for and receiving benefits.
8. Within 14 days after receipt of written request from the Michigan Department of Human Services/Children’s Protective Services pertinent records and information will be released.
H. Except as otherwise provided in Section C of this policy or Section 330.1748a or 330.1748 of the Mental Health Code, if consent is obtained from the recipient, the recipient’s guardian with authority to consent, the parent with legal custody of a minor recipient, or the court-appointed personal representative or executor of the estate of a deceased recipient, information made confidential by this section may be disclosed to all of the following:
1. A provider of mental health services to the recipient
2. The recipient or his or her guardian or the parent of a minor recipient or another individual or agency unless in the written judgment of the holder the disclosure would be detrimental to the recipient or others.
I. All staff members shall immediately report to the Program Director and the Executive Director or designee all information provided by a recipient that reveals that substantial or serious physical harm may come to the recipient or to another person in the near future.
J. The Executive Director, designee, or all mental health professionals shall comply with Section 330.1946 of the Mental Health Code.
K. Information shall be provided to attorneys other than prosecuting attorneys if:
1. The attorney is retained or appointed by the court to represent the recipient and presents identification and a consent or release executed by the recipient.
2. The attorney does not represent the recipient but presents a certified copy of an order from a court, with a signed release of information by the recipient, directing disclosure of information concerning the recipient to that attorney. Then only the requested information may be sent.
L. Information shall be provided to private physicians and certified consulting psychologists appointed or retained to testify in civil, criminal, or administrative proceedings as follows:
1. Those who present identification and a certified true copy of a court order appointing them to examine a recipient for the purpose of diagnosing the present condition shall be permitted to review on the program’s premises a record containing information concerning the recipient.
2. They will be notified prior to the review of the records when the records contain privileged communications that cannot be disclosed in court under Section 330.1750(2) of the Mental Health Code.
3. Privileged information shall not be disclosed unless disclosure is permitted because of an express waiver of privilege or by law that permits or requires disclosure.
M. A prosecutor may be given non-privileged information or privileged information that may be disclosed if it contains information relating to participation in proceedings under the Mental Health Code. Such information could include:
1. Names of witnesses to acts which support criteria for involuntary admission
2. Information relevant to alternatives to admission to a hospital or facility
3. Other information determined by the Executive Director as necessary and pertinent to proceedings under the Mental Health Code.
N. Confidential information may be disclosed that enables a recipient to apply for or receive benefits without the consent of the recipient or legally authorized representative only if the benefits shall accrue to the state or shall be subject to collection for liability for mental health services.
O. Non-identifying information may be disclosed for purposes of outside research, evaluation, accreditation, or statistical information. An effort will be made to prevent unwarranted identification of recipients, including inspection of sampling information, and criteria to determine when identification would be of harm to a recipient.
P. The Executive Director or designee shall be consulted in every event where the news media is requesting information.
Q. Copies of policies and procedures regarding confidentiality and disclosure shall be readily available upon request.
R. The agency will grant a representative of Michigan Protection and Advocacy Services (MPAS) access to the records in the following situations:
1. When the recipient, or other empowered representative, has consented to the access.
2. In the case of a recipient, including a consumer who has died or whose whereabouts are unknown, when all the following apply:
a. Because of mental or physical condition, the recipient is unable to consent to the access.
b. The recipient does not have a guardian or other legal representative, or the recipient’s guardian is the state.
c. MPAS has received a complaint on behalf of the recipient or has probable cause to believe, based on monitoring or other evidence, that the recipient has been subject to abuse or neglect. The following conditions must be met before MPAS may have access to records:
1. Request must be in writing.
2. CMHSP will make a determination, if in their professional judgment, it is reasonable to believe that the recipient is/has been subjected to abuse or neglect.
3. CMHSP will limit the disclosure to the relevant information expressly authorized by statute or regulation.
4. CMHSP will maintain documentation of all disclosures.
3. When a recipient has a guardian or other legal representatives and all the following conditions apply:
a. A complaint has been received by the protection and advocacy system or there is probable cause to believe the health or safety of the recipient is in serious and immediate jeopardy.
b. Upon receipt of the name and address of the recipient’s legal representative, MPAS has contacted the representative and offered assistance in resolving the situation.
c. The representative has failed or refused to act on behalf of the recipient.
S. The records, data, and knowledge collected for or by individuals or committees assigned a peer review function, including review under Section 330.1143a of the Mental Health Code, are confidential. The aforementioned materials are to be used only for the purpose of peer review, are not public records, and are not subject to court subpoenas.
T. When the agency releases information for clinical purposes that have been authorized by the recipient or recipient’s guardian or parent of a minor, the agency will release the full medical and clinical record to the provider of mental health services. This is for the purpose of providing the recipient, and subsequent or collaborating therapist, the full clinical benefits available.
U. A recipient, guardian, or parent of a minor recipient, after having gained access to treatment records, may challenge the accuracy, completeness, timeliness, or relevance of factual information within the records. The recipient or the empowered representative will be allowed to insert into the record a statement correcting or amending any information at issue. Those statements will become a part of the permanent record and will be transmitted (through appropriate release) as an integral part of the clinical record. If the agency adds further statements in response to the insertion it is done with the full knowledge of the person served.
V. A recipient, guardian, or parent of a minor recipient will be given notice of the recipient’s privacy rights and requested to provide written acknowledgement of the notice. If the recipient, guardian, or parent of a minor refuses to sign the acknowledgement, please note on the form the reason and file. Retain for six years.
Approved: 10/1/01
Revised: 3/14/03
Revised: 4/13/07 (ELT approved)
Revised: 2/19/08