Stan J Caterbone
Project Hope Foundation
Advanced Media Group
1250 Fremont Street
Lancaster, PA 17603
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
IN RE: : Docket No. CI-08-04741
MEGHAN . LIAPPATT V : CD 6 208A
AMICUS CURIAE IN SUPPORT OF A CLOSED HEARING
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
AND NOW comes before the said court Stanley J. Caterbone, appearing Pro Se, Project Hope Foundation, and Advanced Media Group, as Movant, to file an Amicus in the above captioned case.
The Movant has an interest in this case as Project Hope being an advocate and a 501 (3) ( c ) non-profit foundation focusing in mental health issues and mental health awareness; Stanley J. Caterbone and Advanced Media Group having similar mental health issues before the courts with a history and experience of how misaligned community attitudes towards persons labeled with mental health problems can carry an unnecessary and costly burden and stigma.
This amicus provides a voice for the movants as well as providing another perspective and opinion that should benefit the courts; the parties; and the public-at-large. The matters presented in this amicus have a direct relevancy in the disposition of this case as it does in the opinion and ORDER of James P. Cullen of July 11, 2008 which ruled against a closed hearing.
Stanley J. Caterbone appeared pro se before a § 7303 § Section 303 Of The Pennsylvania Mental Health Procedures Act P.S. 7303 hearing in the Lancaster General Hospital on April 7, 2006 and had a successful conclusion in arguing against commitment and treatment. Stanley J. Caterbone was released after a 5-day evaluation, which is also being challenged in the courts.
July 21, 2008
Stanley J. Caterbone, Pro Se
Project Hope Foundation
Advanced Media Group
1250 Fremont Street
Lancaster, PA 17603
TABLE OF CONTENTS
1. BACKGROUND OF MOVANTS Page 3
a. Stanley J. Caterbone
b. Project Hope
c. Advanced Media Group
2. PREFACE TO ISSUES BEFORE THE COURT Page 7
3. ISSUES BEFORE THE COURT Page 8
a. I) Should The Hearing On The Commonwealths Amended Petition Under § Section 304 Of The Pennsylvania Mental Health Procedures Act P.S. 7304 Is Open To The Public?
b. II) Did The Court Give Due Consideration To The Claims By Meghan Lippiatt Regarding Retaliation By The Public During And After A Public Hearing On The Issues?
4. CONCLUSION Page 11
5. CERTIFICATE OF SERVICE Page 12
6. EXHIBITS Page 13
a. Jonathon Turley Post of December 13, 2007 Page 13
b. Biography of Jonathan Turley Page 16
c. Conditional Release and Mandated Outpatient Treatment
By George F. Parker, M.D. Page 29
d. Griffin PA, Steadman HJ, Heilbrun K Page 22
e. A Look Behind the Scenes of HIPAA and the
Privacy Rule Page 24
f. Federal Oversight of Psychiatric Records:
The Health Insurance Portability and Accountability Act Page 28
g. More protections for patients and psychologists
under HIPAA Page 33BACKGROUND OF MOVANTSStanley J. Caterbone (CATERBONE)
CATERBONE has been following very closely the case of Meghan Lippiatt and was a witness to the trial on one of the few last days before the Honorable Judge James P. Cullen in the Lancaster County Court of Common Pleas to hear the testimony of Psychiatrist Dr. Gotlieb of the Lancaster General Hospital. CATERBONE had also written a response on the blog of nationally known law expert and constitutional scholar Jonathan Turnley on December 19, 2007 days after the conclusion of the trial. Jonathan Turley, like other national experts, had posted an opinion on the Lippiatt case after the verdict and conclusion of the trial. The response is EXHIBIT A.
CATERBONE has been involved with Project Hope Foundation for more than 10 years and has conducted extensive research in the field of mental illness and has been an advocate for mental illness for almost 3 decades. Mental illness has been an issue in his family since the 1960’s and has been an extremely challenging dilemma resulting in the untimely and suspicious deaths of two brothers in their 30’s. His oldest brother died in Santa Barbara, California on Christmas day of 1984 with the death being ruled a suicide, but now known to have been a murder. In 1996 his youngest brother, Tom had committed suicide and the circumstances are currently being litigated in the federal courts as a wrongful death complaint. CATERBONE has researched and investigated the causes of both deaths as it relates to the issue of mental illness and has conducted research and investigations into his own malicious diagnosis of his own mental health record. His father, Samuel, has a history of mental health records however; he too has a history of psychic phenomena and a history of suspicious activities with the United States Government and the Lancaster community. His mental health record is also in dispute. He was a very successful businessman and had served in the U.S. Navy as a radioman and graduated from gunner school with honors. He also developed new technologies for the Dry Cleaning industry. He has also conducted extensive research into areas concerning U.S. Government activities.
CATERBONE has developed relationships with mental health professionals for his work with Project Hope and has been the main person responsible for coordinating and administrating the mission of creating awareness and education to the community-at-large with the distribution of Project Hope’s video “Numbers Don’t Lie”; including to the Mental Health and Retardation Department of the County of Lancaster this past year. CATERBONE has worked extensively with Contact Lancaster, the Mental Health Alliance of Lancaster County, and other mental health organizations as well faith based organizations. CATERBONE had dealings with national professionals and organizations in the field; especially since C. EvreTt Koop, the former U.S. Surgeon General and Tipor Gore made mental health awareness a top priority in 1998. Tipor Gore also received the Project Hope video for distribution as a resource for other non-profit organizations. CATERBONE’S research includes national and local trends of suicides; symptomatic behavior in bi-polar and manic depression; and the issues and stigma confronting those affected with mental illnesses.
CATERBONE brings a unique perspective to the courts that may help to shed light into how people with mental illnesses are treated unfairly by family, friends, and the community-at-large. It should be noted that CATERBONE is also telepathic with a history of psychic traits in his family dating back 2 generations. CATERBONE is currently engaged in extensive litigation challenging his own mental health record, treatment, and diagnosis in federal and state courts. His own mental health record includes 2 fabricated suicide stories that are part of the record in hospitals and with police departments; this is in addition to the 30 false arrests. Mental health and criminal records can be very damaging in destroying a persons credibility and reputation and ultimately his professional and personal life if not respected by all.
CATERBONE is presently the founder of Advanced Media Group and conducts his business from Lancaster County, Pennsylvania. For the past several years, in addition to appearing before the courts as a pro se litigator, Advanced Media Group has been developing several business interests in the revitalization of downtown Lancaster, Those projects include a downtown UPS Copy and Shipping Store; the Theater at Hotel Brunswick; and the Excelsior Place Business Plan,
In 2006 CATERBONE began his role as an Activist Shareholder for Fulton Financial, which is listed as "FULT" on the NASDAQ stock exchange. As a founder of Financial Management Group, Ltd., a full service financial firm, CATERBONE has drawn upon the success in developing the strategic vision for his company and the experience gained in directing the legal affairs and public offering efforts in dealing with Fulton Financial.
In 2005 CATERBONE, as a Pro Se Litigant filed several civil actions as Plaintiffs that are in current litigation in the United States District Court for the Eastern District of Pennsylvania, the United States Third District Court of Appeals, the Pennsylvania Supreme Court, The Pennsylvania Superior Court, the Commonwealth Court of Pennsylvania, The Court of Common Pleas of Lancaster County, Pennsylvania. These litigations include violations of intellectual property rights, anti-trust violations, and interference of contracts relating to several business interests. Central to this litigation is the Digital Movie, Digital Technologies, Financial Management Group, Ltd,/FMG Advisory, Ltd., and it’s affiliated businesses along with a Federal False Claims Act or Federal Whistleblowers Act regarding the firm of International Signal and Control, Plc., (ISC) the $1Billion Dollar Fraud and the Export violations of selling arms to South Africa and Iraq. This litigation dates back to 1987. CATERBONE was a shareholder of ISC, and was solicited by ISC executives for professional services. The Federal False Claims Act is currently part of RICO Civil Complaint in the United States District Court for the Eastern District of Pennsylvania and the Third Circuit Court of Appeals, as docket no. 05-2288.
A complete biography and history is located on the website of Advanced Media Group at:
www.amgglobalentertainmentgroup.com PROJECT HOPE
Project Hope Foundation was founded in 1996 after the untimely suicide of Thomas P. Caterbone, brother of Stanley J. Caterbone. Project Hope was initially formed by another brother, Dr. Phillip W. Caterbone of Austin Texas, and other friends and relatives that wanted to continue the legacy of Tom Caterbone and make a contribution to the community-at-large in dealing with mental health issues and mental health awareness.
In 1996 Project Hope Foundation produced the extremely successful instructional video “Numbers Don’t Lie” for helping teenagers deal with suicide and help them to identify kids which may be at risk. The video was produced and directed by Dr. Phil Caterbone & Psychologist Craig Crabtree, both of Austin, Texas. The video is a approximately 20 minutes and is accompanied by an instructional workbook for the monitors and a workbook for the students. "Numbers Don't Lie" has been sold to the Texas School Board of Education to pay for it’s development and production. The video has been provided to other Faith Based non-profit organizations, school districts, church groups, and municipalities by CATERBONE and Advanced Media Group over the past 10 years. The video can be viewed online at: www.advancedmediagroup.youtube.com
and clicking on the “Numbers Don’t Lie” video.
Project Hope provided funding for the Mental Health Alliance of Lancaster County, Contact/Lifeline of Lancaster (The 24/7 Suicide Hotline), The Schreiber Pediatric Center, and other charitable organizations and faith based charities. In 1999 Project Hope donated and constructed a soccer field on the new Headquarters of the Schreiber Pediatric Center on Goods Road, in Lancaster.
Tom's Project Hope is funded by an annual golf tournament on the 1st Saturday in August, called the Tommy Caterbone Memorial Golf Tournament.
The Lancaster County Mental Health/Mental Retardation department is currently using the video as a resource Mental Health/Mental Retardation Department. ADVANCED MEDIA GROUP
In 1989 CATERBONE founded Advanced Media Group, Ltd., which was one of only 4 or 65 U.S. domestic companies that had the capability to manufacture CD-ROM's. Advanced Media Group also developed tools, applications, and provided consulting to information technologies. Advanced Media did business with commercial companies, government agencies, educational institutions, and foreign companies including the Department of Defense; NASA, National Institution of Standards & Technology (NIST); Department of Defense, The Defense Advanced Research Projects Agency (DARPA); and the Defense Mapping Agency, Central Intelligence Agency; (CIA), IBM; Microsoft, AMP; Commodore Computers, American Bankers Bond Buyers; and a host of others. I also was working with R.R, Donnelly's Geo Systems; which was developing various interactive mapping technologies, which is now a major asset of Map Quest. Map Quest is the premier provider of mapping software and applications for the Internet and is often used in delivering maps and directions for Fortune 500 companies.
Advanced Media Group now has interests in various business and fields including the film and entertainment industries; information technologies; revitalizations of downtown Lancaster; Research and Study in Mind Control and ESP; and the fulfillment and distribution of past intellectual property assets.PREFACE TO ISSUES BEFORE THE COURT
Upon the verdict of the lower court trial of not guilty by reason of insanity, CATERBONE posed the question of why a condition for release of a psychiatric evaluation was not issued by presiding Judge James P. Cullen. This is evident in the Jonathan Turley Post of December 19, 2007 which states the following:
“Here is a brief synopsis; In the VERDICT ORDER there did not seam to be any condition for Ms. Liappatt to be held in custody until a further psychiatric evaluation could be performed. This set in motion a number of court filings by the District Attorney, the Defense Counsel, and others trying to recommit her to a treatment facility.”
There has been much research done on the subject of conditional releases in not guilty by reason of insanity cases throughout this country and most all have concluded that conditional releases are a very acceptable and successful legal alternative to quell the public fear and animosity of persons getting away with murder. In most cases the person is subject to a variety of post verdict mental health treatment plans that may include community participation until it can be proven by a certified psychiatrist that the person no longer poses any threat to society before being released into the community. ISSUES BEFORE THE COURT
1. WETHER THE HEARING ON THE COMMONWEALTHS AMENDED PETITION UNDER s SECTION 304 OF THE PENNSYLVANIA MENTAL HEALTH PROCEDURES ACT P.S. 7304 IS OPEN TO THE PUBLIC.
2. DID THE COURT GIVE DUE CONSIDERATION TO THE CLAIMS BY MEGHAN LIPPIATT REGARDING RETALIATION BY THE PUBLIC DURING AND AFTER A PUBLIC HEARING ON THE ISSUES.
I) SHOULD THE HEARING ON THE COMMONWEALTHS AMENDED PETITION UNDER
§ SECTION 304 OF THE PENNSYLVANIA MENTAL HEALTH PROCEDURES ACT P.S. 7304 IS OPEN TO THE PUBLIC?
Section 304 of the Pennsylvania Mental Health Procedures Act P.S. 7304
§ 7304. Court-Ordered Involuntary Treatment Not To Exceed Ninety Days.
(a) Persons for Whom Application May be Made.--
1. A person who is severely mentally disabled and in need of treatment, as defined in section 301(a), may be made subject to court-ordered involuntary treatment upon a determination of clear and present danger under section 301(b)(1) (serious bodily harm to others), or section 301(b)(2)(i) (inability to care for himself, creating a danger of death or serious harm to himself), or 301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self-mutilation).
2. Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required by section 301 in fact occurred, and that his condition continues to evidence a clear and present danger to himself or others. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating within the past 30 days.
(c) Procedures for Initiating Court-ordered Involuntary Treatment for Persons Not in Involuntary Treatment.--
1. Any responsible party may file a petition in the court of common pleas requesting court-ordered involuntary treatment for any person not already in involuntary treatment for whom application could be made under subsection (a).
2. The petition shall be in writing upon a form adopted by the department and shall set forth facts constituting reasonable grounds to believe that the person is within the criteria for court-ordered treatment set forth in subsection (a). The petition shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person.
3. Upon a determination that the petition sets forth such reasonable cause, the court shall appoint an attorney to represent the person and set a date for the hearing as soon as practicable. The attorney shall represent the person unless it shall appear that he can afford, and desires to have, private representation.
4. The court, by summons, shall direct the person to appear for a hearing. The court may issue a warrant directing a person authorized by the county administrator or a peace officer to bring such person before the court at the time of the hearing if there are reasonable grounds to believe that the person will not appear voluntarily. A copy of the petition shall be served on such person at least three days before the hearing together with a notice advising him that an attorney has been appointed who shall represent him unless he obtains an attorney himself, that he has a right to be assisted in the proceedings by an expert in the field of mental health, and that he may request or be made subject to psychiatric examination under subsection (c)(5).
5. Upon motion of either the petitioner or the person, or upon its own motion, the court may order the person to be examined by a psychiatrist appointed by the court. Such examination shall be conducted on an outpatient basis, and the person shall have the right to have counsel present. A report of the examination shall be given to the court and counsel at least 48 hours prior to the hearing.
6. Involuntary treatment shall not be authorized during the pendency of a petition except in accordance with section 302 or section 303.
(e) Hearings of Petition for Court-order Involuntary Treatment.--A hearing on a petition for court-ordered involuntary treatment shall be conducted according to the following:
1. The person shall have the right to counsel and to the assistance of an expert in mental health.
2. The person shall not be called as a witness without his consent.
3. The person shall have the right to confront and cross-examine all witnesses and to present evidence in his own behalf.
4. The hearing shall be public unless it is requested to be private by the person or his counsel.
5. A stenographic or other sufficient record shall be made, which shall be impounded by the court and may be obtained or examined only upon the request of the person or his counsel or by order of the court on good cause shown.
6. The hearing shall be conducted by a judge or by a mental health review officer and may be held at a location other than a courthouse when doing so appears to be in the best interest of the person.
A decision shall be rendered within 48 hours after the close of evidence.
Under Section (e) 4. of the Section 304 of the Pennsylvania Mental Health Procedures Act P.S. 7304 it clearly states the following:
“The hearing shall be public unless it is requested to be private by the person or his counsel.”
In Judge James P. Cullen ORDER and OPINION of July 11, 2008 Judge Cullen appears to be abusing his discretion by mandating a higher burden and threshold for showing good cause why Ms. Lippiatt is entitled to her request of a closed hearing. It also appears that Judge Cullen is trying to pacify the public interest and outcry when Meghan Liappitt’s was released at the conclusion of her trial, which should have been addressed with a condition for release, which Judge James P. Cullen failed to address in his VERDICT ORDER of December 13, 2008.HIPAA CONSIDERATIONS
The privacy laws of health records addressed with the passage if the Health Information Portability and Accountability Act (HIPAA) in 1996 may have some controlling interest in these matters. A summary of HIPAA is as follows:
“A major upshot of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 is a series of federal rules that have a considerable impact on providers and patients – their interactions, their rights, and their responsibilities. In sorting through the details and compliance requirements of the privacy rule in particular, it helps for practitioners to know something of the historical and political context in which HIPAA and the rules that resulted from this law took shape.
Under HIPAA, Congress tasked the Department of Health Human Services (HHS) with developing federal rules that govern how patient records are handled, shared, and protected in the health care system. The “transactions rule,” the first rule promulgated by HHS, provides for standard formatting of electronic patient records for health care claims and other purposes. This rule benefits health professionals by making it easier for them to work with uniform rather than multiple claims forms. While more rules will follow, the “800-pound gorilla” of the series, the “privacy rule,” was finalized last April. The privacy rule provides some important protections for psychology records, with provisions that will impact the confidentiality of the psychologist-patient relationship.”
An Open Hearing would be placing mental health records in the public domain and may be a violation of the rights of Ms. Lippiatt as defined in the HIPAA code.
The general public really has no interest in the process or the Section 304 of the Pennsylvania Mental Health Procedures Act P.S. 7304 hearing, but rather has an interest in the conclusion of the hearing in protecting itself from someone whom may pose a danger or threat to others. That danger and or threat to the community-at-large is not compromised nor is it supported by an open hearing. That danger and or threat is only of importance and relevant if Ms. Lippiatt is found to have a mental health illness and is not committed for treatment. The question of an open or closed hearing is not relevant, only the conclusion of the matters that will be presented to the courts.II) DID THE COURT GIVE DUE CONSIDERATION TO THE CLAIMS BY MEGHAN LIPPIATT REGARDING RETALIATION BY THE PUBLIC DURING AND AFTER A PUBLIC HEARING ON THE ISSUES?
Stanley J. Caterbone has been subject to an unprecedented history of retaliation and intimidation that has been the result of a stigma due to his mental health record. Although this mental health record’s validity and authenticity is being challenged in several courts, the stigma and treatment by the community-at-large is real and can be used to substantiate Ms. Lippiatt’s claim of retaliation in her opposition to an open hearing. Subjecting Ms. Lippiatt to unnecessary intimidation and retaliation for information that would be made public during an open hearing is of concern to all who may face similar circumstances.
Stanley J. Caterbone has a criminal record of some 30 false arrests in Lancaster County that would have never been possible without his mental health record. Law enforcement relied upon the fact that Stanley J. Caterbone had a history and mental health record to discredit him before the courts, in his arrests, although he was successful in having those arrests and convictions dismissed and overturned.
Stanley J. Caterbone also must endure a systematic and problematic attack of harassment in public that is also due to the same mental health record and his fabricated and diminished reputation caused by the same.
The fact that Ms. Lippiatt was found not guilty by reason of insanity of murdering her small children should compel the court to consider her claims of retaliation more seriously. If the courts do no recognize the risks involved to Ms. Lippiatt and others that may come before the courts in similar circumstances, the courts should be compelled to provide the burden of proof that would be considered in closing the hearing for the same said reasons. CONCLUSION
The Lippiatt case is apparently precedent in the County of Lancaster of a person being found not guilty by reason of insanity. That being the case, the court should take extra precaution in protecting all parties in all related matters and should be careful when reaching opinions and conclusion that will be precedent to future and similar parties that will come before the courts.
Judge Cullen’s ORDER and OPINION of July 11, 2008 fails to protect the rights of Ms. Lippiatt and others that may come before the courts, but does so unnecessarily. Closing the hearing to the general public would not diminish the public interest, nor would it make the general public safer. Only a conclusion of an involuntary commitment of Ms. Lippiatt IF she does now possess a mental health illness that does pose a threat or danger to others.
July 21, 2008
Stanley J. Caterbone, Pro Se
Project Hope Foundation
Advanced Media Group
1250 Fremont Street
Lancaster, PA 17603
www.amgglobalentertainmentgroup.com CERTIFICATE OF SERVICE
Service was made on this 21st day of July 2008 upon the following by way of electronic mails; first class U.S. mails; or personal delivery at the addresses set forth below:
Kelley M. Sekula, Esq, ADA
Lancaster County District Attorney Office
Lancaster County Courthouse
50 N. Duke Street
Lancaster, PA 17602
Julie M. Cooper, Esq., For Meghan Liappitt
Street: 222 South Market Street
Elizabethtown, pa 17022-2439
Phone: (717) 367-1370
George C. Werner, Esq., For Lancaster Newspapers
Barley Snyder, LLC
126 East King Street
Lancaster, PA 17602
Alspach & Ryder (Ryder, Bruce P)
232 N Duke St
Lancaster, PA 17602-5205
Phone: (717) 393-3939
July 21, 2008 Respectfully Submitted:
Stanley J Caterbone, Pro Se
Project Hope Foundation
Advanced Media Group
1250 Fremont Street
Lancaster, PA 17603
www.amgglobalentertainmentgroup.com EXHIBIT A
The following can be viewed online at: http://jonathanturley.org
And search on LIPPIATT
Pa. Woman Who Killed Her Two Children Found Not Guilty by Reason of Insanity
Published 1, December 11, 2007 Criminal law , Justice by Jonathan Turley
Meghan Lippiatt has been found not guilty by reason of insanity in a Lancaster court. Lippiatt admitted suffocating her infant son and drowning her 2-year-old son in 2004.
The killing two-year-old Silas and his four-month-old brother Miles occurred weeks after a break-up with her husband.
Lippiatt called 911 and told the operator: “I did something really bad, I just killed my kids.” She later tried to kill herself and left a note which read: “I am sorry, I didn’t want to hurt anyone. I am sorry, goodbye, please help me from the grave.”
There is growing interest in allowing greater use of the insanity defense after it was heavily curtailed after the shooting of President Ronald Reagan.
For a prior column on the insanity defense, click here
For the full story, click here
Response to “Pa. Woman Who Killed Her Two Children Found Not Guilty by Reason of Insanity”
CATERBONE of Advanced Media Group wrote:
December 19, 2007
Dear Mr. Turley,
First of all I always look for your opinion when issues are looking for expert constitutional scholars. I have been an avid learner of your opinion for many, many years.
Regarding this case, I don’t know if you are aware, but there was a problem and fiasco after the trial and wondered what your opinion was. She was freed immediately after her bench trial upon a Habeas corpus filed by her defense counsel. See the following news account:
Here is a brief synopsis; In the VERDICT ORDER there did not seam to be any condition for Ms. Liappatt to be held in custody until a further psychiatric evaluation could be performed. This set in motion a number of court filings by the District Attorney, the Defense Counsel, and others trying to recommit her to a treatment facility.
The following was my email to someone regarding my suspicion, I have later found that temporary insanity, if in his verdict would free her immediately after trial:
December 18, 2007
To Ron Harper of http://www.5thestate.com
“Are you following this case at all? This is truly a first class Lancaster County smoke and mirrors game?
This is my analysis. And for the record, I did attend the trial and sat to hear Gottlieb, the psychiatrist testify and be cross-examined. I have also studied mental health issues for Project Hope, for my own case, and for my family’s different cases, especially my father and brothers Sam and Tom; for over 20 years. So I am not uneducated with the issues.
Being that this is the first such verdict of not guilty by reason of insanity in Lancaster County, as reported, I think this whole case was purposely mismanaged so that the next time such a verdict is before a Lancaster County jury, they can say “see, if you find the defendant not guilty by insanity, that person may be released and freed without any treatment or conditions.”
I think Judge Cullen should have to explain why he did not issue a condition in his verdict to have Ms. Lippiatt held in Lancaster County Prison or transferred to a mental health facility until the outcome of a psychiatric evaluation. I don’t understand why he did not do this, unless the law prevented him from doing that. I will have to research this.”
I would love to hear your opinion, if you find the time. Hope to meet you in the future.
STAN J. CATERBONE
Advanced Media Group
Bio of JONATHAN TURLEY
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades ranging, representing whistleblowers, military personnel, and a wide range of other clients. These include his representation of the Area 51 workers at a secret air base in Nevada; the nuclear couriers at Oak Ridge, Tennessee; the Rocky Flats grand jury in Colorado; Dr. Eric Foretich, the husband in the famous Elizabeth Morgan custody controversy; and four former United States Attorneys General during the Clinton impeachment litigation. In the Foretich case, Turley succeeded recently in reversing a trial court and striking down a federal statute through a rare “bill of attainder” challenge. Professor Turley has also served as counsel in a variety of national security cases, including espionage cases like that of Jim Nicholson, the highest ranking CIA officer ever accused of espionage. Turley also served as lead defense counsel in the successful defense of Petty Officer Daniel King, who faced the death penalty for alleged spying for Russia. Turley also served as defense counsel in the case of Dr. Tom Butler, who is facing criminal charges dealing with the importation and handling of thirty vials of plague in Texas. He also served as counsel to Larry Hanauer, the House Intelligence Committee staffer accused of leaking a classified Presidential National Intelligence Estimate to the New York Times. (Hanauer was cleared of all allegations).
Among his current cases, Professor Turley represents Dr. Ali Al-Timimi, who was convicted in Virginia in 2005 of violent speech against the United States. He also represents Dr. Sami Al-Arian, accused of being the American leader of a terrorist organization while he was a university professor in Florida. He also currently represents pilots approaching or over the age of 60 in their challenge to the mandatory retirement age of the FAA. Turley has
served as a consultant on homeland security and constitutional issues, including the Florida House of Representatives.
Professor Turley is a frequent witness before the House and Senate on constitutional and statutory issues as well as tort reform legislation. Professor Turley is also a nationally recognized legal commentator. Professor Turley was ranked as 38th in the top 100 most cited “public intellectuals” in the recent study by Judge Richard Posner. Turley was also found to be the second most cited law professor in the country. In 2008, he was ranked in a study of the
nation’s top 500 lawyers - one of only a handful of academics. In prior years, he was ranked as one of the nation’s top ten lawyers in military law cases as well as one of the top 40 lawyers under 40.
Professor Turley’s articles on legal and policy issues appear regularly in national publications with over 500 articles in such newspapers as the New York Times, Washington Post, USA Today, Los Angeles Times and Wall Street Journal. He is on the Board of Contributors of USA Today. In 2005, Turley was given the Columnist of the Year award for Single-Issue Advocacy for his columns on civil liberties by the Aspen Institute and the Week Magazine.
Professor Turley also appears regularly as a legal expert on all of the major television networks. Since the 1990s, he has worked under contract as the on-air Legal Analyst for NBC News and CBS News to cover stories that ranged from the Clinton impeachment to the presidential elections. Professor Turley is often a guest on Sunday talk shows with over two-dozen appearances on Meet the Press, ABC This Week, Face the Nation, and Fox Sunday.Professor Turley teaches courses on constitutional law, constitutional criminal law, environmental law, litigation, and torts. He is the founder and exectuve director of the Project for Older Prisoners (POPS).
Professor Turley received his B.A. at the University of Chicago and his J.D. at Northwestern. (In 2008, he was given an honorary Doctorate of Law from John Marshall Law School for his contributions to civil liberties and the public interest).
For further information: Ms. Kristen Hilderbrand – 202-994-0537
Conditional Release and Mandated Outpatient Treatment
George F. Parker, M.D.
To the Editor: In the thoughtful and stimulating article on mandated outpatient treatment by Monahan and colleagues in the September 2001 issue (1), little mention was made of the fairly substantial literature on mandated treatment of forensic populations in the community. Conditional release has been used for decades as a technique for managing the risks inherent in returning a person found not guilty by reason of insanity to the community.
Under conditional release, such acquittees are released into the community with various conditions imposed; for example, they are often required to live in specified housing and not to use illegal drugs. They remain under the jurisdiction of a criminal judge or a central monitoring agency, such as a psychiatric security review board. Adherence to mental health treatment in the community is almost always a condition of release. As leverage, this type of mandated community treatment uses both avoidance of jail and avoidance of hospitalization—both a brief jail stay and rehospitalization are possible consequences of violation of the conditions of release, depending on the state.
I recently conducted a thorough literature search, using PubMed and manual strategies, on the topic of conditional release for persons found not guilty by reason of insanity. I found more than 60 articles, including more than 30 published in the past ten years. Many of the earlier studies on conditional release focused on the demographic characteristics of persons found not guilty by reason of insanity. However, most of the articles on this subject for the past 30 years have reported arrest rates and hospitalization rates of persons on conditional release. A recent meta-analysis on this issue, based on statewide results from New York, California, and Oregon, found estimated annual arrest rates to range from 3.4 to 7.9 percent, while the estimated annual hospitalization rates ranged from 14.5 to 25.8 percent (2,3). I recently presented a poster at the annual meeting of the American Academy of Psychiatry and the Law showing that among persons receiving assertive community treatment the annual arrest rate was 1.2 percent and the annual hospitalization rate was 14.5 percent (4). In addition, some of the published reports have included statistical models for factors that are predictive of the granting or revocation of conditional release (5).
The literature on conditional release of persons found not guilty by reason of insanity thus may hold some of the answers to the many questions about mandated community treatment posed by Monahan and colleagues. In particular, the issues of the process of mandating treatment, the outcomes of programs—both for the individual and for the system—that do mandate treatment, and the legal, ethical, and political questions that result from mandating treatment in the community have all been discussed, to greater or lesser degrees, in the conditional release literature over the past 30 years.
Dr. Parker is associate professor of clinical psychiatry at Indiana University School of Medicine in Indianapolis.
1. Monahan J, Bonnie RJ, Appelbaum PS, et al: Mandated community treatment: beyond outpatient commitment. Psychiatric Services 52:1198-1205, 2001[Abstract/Free Full Text]
2. Wiederanders MR, Bromley DL, Choate PA: Forensic conditional release programs and outcomes in three states. International Journal of Law and Psychiatry 20:249-257, 1997[CrossRef][Medline]
3. Harris VL: Insanity acquittees and rearrest: the past 24 years. Journal of the American Academy of Psychiatry and the Law 28:225-231, 2000[Medline]
4. Parker GF: Low reoffense rate in a conditional release program. Poster presented at the annual meeting of the American Academy of Psychiatry and the Law, Boston, Oct 25-28, 2001
5. Callahan LA, Silver E: Factors associated with the conditional release of persons acquitted by reason of insanity: a decision tree approach. Law and Human Behavior 22:147-163, 1998[CrossRef][Medline]
Griffin PA, Steadman HJ, Heilbrun K.
Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Richmond 23214.
Monitored treatment in the community, also known as conditional release, has been described as the most important advance in the treatment of insanity acquittees in the last decade. Despite the importance of the development of conditional release, however, there has been relatively little written about relevant issues and planning principles important in designing and implementing conditional release systems. The present paper discusses important considerations relevant to conditional release that are associated with key decision points within systems for persons found not guilty by reason of insanity (NGRI). Four planning principles, generalizable to all NGRI systems, are then presented in a way that integrates the previous discussion. It is concluded that conditional release plays a crucial role in the treatment of insanity acquittees and that mental health administrators may either proactively modify their systems, in a way that balances public safety with individual rights and treatment needs, or wait for the modification mandate to be forced upon them in the wake of a highly publicized, heinous offense.
A Look Behind the Scenes of HIPAA and the Privacy Ruleby Doug Walter, J.D.A major upshot of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 is a series of federal rules that have a considerable impact on providers and patients – their interactions, their rights, and their responsibilities. In sorting through the details and compliance requirements of the privacy rule in particular, it helps for practitioners to know something of the historical and political context in which HIPAA and the rules that resulted from this law took shape.Under HIPAA, Congress tasked the Department of Health Human Services (HHS) with developing federal rules that govern how patient records are handled, shared, and protected in the health care system. The “transactions rule,” the first rule promulgated by HHS, provides for standard formatting of electronic patient records for health care claims and other purposes. This rule benefits health professionals by making it easier for them to work with uniform rather than multiple claims forms. While more rules will follow, the “800-pound gorilla” of the series, the “privacy rule,” was finalized last April. The privacy rule provides some important protections for psychology records, with provisions that will impact the confidentiality of the psychologist-patient relationship. The privacy rule may be divided into three parts. The provisions of the first part address when and how patient records may be used and disclosed among treating providers and to third parties. The second part provides patients with certain rights regarding their records, such as the right to access and amend records. The third part outlines administrative requirements that psychologists and other health care professionals and entities must follow in using and disclosing patient records.In essence, the privacy rule affords psychologists new protections regarding the records of their patients, but it also requires psychologists to proactively ensure the protection of records through certain administrative requirements. These include, for example, providing patients with information about their privacy rights, implementing procedures to ensure records privacy, and securing records in offices.While the privacy rule includes some requirements already contained in various state laws, some of the federal rule’s mandates are new. The rule may be understood, however, as providing a national “floor” of patient records protections upon which states may build further protections, since Congress has specifically provided that state laws providing for greater records protection will not be preempted by the federal rule.Some may question why a federal privacy rule was promulgated in the first place, since many state laws already protect the privacy of patient records. The short answer is that state laws vary in the extent to which they protect patient records privacy, particularly mental health records. A federal floor of protection provides a baseline uniformity of records protection. The long answer is rooted in the history leading to promulgation of the privacy rule.The Stage for Conflict Is SetHIPAA legislation and rulemaking, including development of the privacy rule, have much to do with the emergence of managed care organizations (MCOs) in the early 1990’s as the primary payers for health care. Unlike insurers in the fee-for-service system, MCOs began demanding broad access to patient records for payment and administrative purposes. Patients and providers balked and fought to keep sensitive personal information outside of the claims-management process.By the mid 1990’s, the insurance and business lobbies began pitching to Congress that a uniform, electronic patient records system to standardize health insurance claims processing, dubbed “administrative simplification,” would save the health care system billions of dollars and relieve the inefficiency and fragmentation in health care claims management. Insurers were also looking for a federal law that legitimized their demands for broad access to patient records. While organized psychology supported administrative simplification, it could not come at a cost to records privacy.
APA was at the forefront of groups concerned that the onerous MCO demands for patient records disclosures – often for administrative purposes not directly related to patient care – had eroded confidentiality. Provider and patient organizations advocated for privacy and security safeguards that would be needed if Congress were to mandate uniform electronic claims processing. The stage for political conflict therefore was set by the time President Clinton included both patient records privacy and administrative simplification provisions in his “Health Security Act of 1993,” which failed to win passage. The inclusion of these provisions shed light on the bitter fight brewing between patients/providers and MCOs over control of records and foreshadowed the rancorous congressional debate to come. The underlying conflict, which continues to this day, was the force that shaped HIPAA law in general and the privacy rule specifically.Battle Pits Provider Groups Against InsurersThe advocacy battle began in earnest when Senator Robert Bennett (R-Utah) introduced the “Medical Records Confidentiality Act” in late October 1995.
The Practice Directorate was concerned by the Bennett bill’s bipartisan co-sponsorship by powerful members of Congress and by the strong support of insurers and other influential organizations. The concern arose from APA’s taking a careful look at the bill’s details. The directorate’s analysis revealed substantial weaknesses in protecting the rights of patients and providers with respect to the privacy of records. APA and allied groups mobilized to prevent the Bennett bill from being included in broader health care legislation that Congress also was seriously considering that fall. That broader legislation eventually was enacted as HIPAA.A "Final" Rule Is Subject to ChangeThe political battle between insurance and patient and provider organizations continues to this day. President George W. Bush’s Administration put the HIPAA privacy rule into effect last April, though the rule itself gives HHS broad authority to make changes until April 2002. Early in 2001, there were indications that the Bush administration was considering gutting the rule, but officials backed down after intense pressure from patient and provider advocacy groups. Despite the delay in revising the rule, HHS has indicated that it will make changes sometime this spring. The Administration can make even further refinements, though very limited, in the final year before the compliance date for the privacy rule — April 14, 2003.The insurance and hospital lobby, faced with the compliance burden on large health care facility providers, has requested changes to the privacy rule on several occasions. The suggested revisions have focused mainly on patient consent requirements and the assertion that the federal privacy rule should take precedence over, or preempt, related state laws.From the APA Practice Organization’s perspective, such changes would weaken the patient protections afforded by the federal privacy rule. Psychology and other mental health advocates, independently and as part of the coalition known as the Mental Health Liaison Group (MHLG), have countered the insurance lobby efforts by repeated calls for preserving the rule’s privacy protections, and even expanding them. For example, the MHLG continues to urge that the special privacy protection given to “psychotherapy notes” as defined in the rule (see article on page 5) should be broadened to apply to other sensitive information such as psychological testing data.
For several months, the directorate’s government relations staff worked to educate Congress and the public about the need for a strong federal privacy bill, or at least a bill that would not undermine existing state privacy laws that protected patients’ rights. APA’s lobbying push successfully countered the insurance industry’s efforts to win inclusion of the Bennett bill in HIPAA. In place of the Bennett bill, Congress incorporated a few sentences into HIPAA to provide a timeline for action. Legislators gave themselves three years, until August 1999, to enact a federal law governing records privacy and further directed that HHS would establish a privacy rule within six months of Congress’ failure to meet its deadline.Shortly after HIPAA’s passage, it became increasingly clear that the patient and provider lobbies and the insurance lobby were entrenched in polar positions. APA assessed that Congress would not likely pass legislation. While the association continued to advocate for appropriate privacy legislation in Congress, APA began focusing efforts on the Administration in anticipation of a rule from HHS. Organized psychology sought a rule that would recognize the particular privacy requirements of records associated with mental health treatment, including the need for heightened protection for psychotherapy notes and other mental health records.Too Hot for Congress to HandleIndeed, the privacy issue ultimately became too controversial for members of Congress to handle, and HHS ended up proposing a federal privacy rule in November 1999.
It looked like a compromise for both sides of the debate. Insurers saw their broad access to records recognized in the proposed rule. At the same time, consumers and providers had won strong protections for records each time they were disclosed to insurers. Throughout 2000, APA worked to ensure that the proposed rule’s strong patient protections were preserved in a final rule. Meanwhile, the insurance lobby pushed to void the rule or at least substantially weaken its protections. HHS released the final privacy rule in the last days of the Clinton Administration in much the same form as the proposed rule. The Practice Directorate considered the final rule a success, with qualification. For example, APA reiterated in written comments to HHS that the privacy rule allowed insurers too much access to records for administrative purposes not directly related to treatment. It appeared the conflict and compromise characteristic of the legislative and rulemaking processes was reflected in the final rule once it ultimately took effect last April.The following chronology illustrates from 1993 through 2001 the major events and players related to the HIPAA law and the final privacy rule from HHS.
Federal Oversight of Psychiatric Records: The Health Insurance Portability and Accountability Act
by Karen Welch
More than two years ago, I published an article on psychiatric records in Mental Health World. This same article was included on one of the Internet editions of MHW found on our website at www.mentalhealthworld.org. Since publishing that article, each month, I receive at least one email asking questions about confidentiality and access to psychiatric records. The previous MHW article on psychiatric records specifically addressed access to records and confidentiality under New York State law. Since that article was written, the federal government has created regulations under the Health Insurance Portability and Accountability Act (HIPAA) which deal explicitly with access and confidentiality of all health care records. The present article will summarize some of the main provisions of these regulations as they relate to the confidentiality and access of psychiatric records. It will also note how the HIPAA regulations differ from New York Law.
The Health Insurance Portability and Accountability Act was passed by Congress in 1996. Final regulations regarding the privacy provisions of this law were issued by the Bush administration in August 2002 and will become effective in April 14, 2003. These regulations provide a comprehensive set of rules for the confidentiality and access to all health records. Since this is a federal law, it affects everyone in the United States. The HIPAA privacy regulations supersede any state law, to the extent that they provide greater protections than state law. However if a state’s law provides greater privacy protections than HIPAA, then the state’s rules apply. General Provisions of HIPAA
HIPAA greatly expands the entities which must keep psychiatric records confidential. Entities which are covered by the requirements of HIPAA include health care providers, health plans and health care clearinghouses that transmit or maintain any health information via electronic media. The definition of health plans includes group health plans, health insurance issuers, HMO’s, Medicaid programs, Medicare programs and long-term care policies. Additionally, the law requires that business associates of covered entities which perform services involving the use or disclosure of protected health information must enter into an agreement to safeguard the privacy of the protected health information.
HIPAA also greatly expands the types of information that are protected. With a few narrow exceptions, HIPAA applies to all individually identifiable health information in any form held or transmitted by a covered entity. Individually identifiable means that it is information from which a person can identify the person to whom it relates. The information is covered whether it is oral or recorded. It also does not matter if it was created by a health care provider, health plan, public health authority, employer, life insurer, school or university or health care clearinghouse. The information may relate “to past, present or future physical or mental health or condition of an individual, the provision of health care to an individual or the past, present or future payment of health care to an individual.”
In contrast, under the New York Mental Hygiene Law, a clinical record means any information covering or relating to the examination or treatment of a patient or client maintained by the facility which has treated or is treating such patient or client. Under the New York Mental Hygiene Law, privacy protections apply to facilities that are operated or licenced by the New York State Office of Mental Health. Additionally, the law requires that disclosure of these records to third parties places the third party under an obligation to maintain confidentiality.
For consumers of mental health services, the expansion of privacy protections found in HIPAA is welcome. Often, individuals would successfully seal their clinical records under New York law only to be thwarted by the fact that insurers or health information clearinghouses had created their own records which were not subject to the confidentiality provisions of New York law. Under HIPAA, the likelihood of this problem is substantially decreased since these entities must now maintain strict confidentiality or face the penalties under the law.
Access By Individuals to Their Own Records
HIPAA creates a general right for an individual to access his or her own health records subject to a number of exceptions. Additionally, the comments to the regulations state that individuals “have a right of access to information used to make health care decisions or determine whether an insurance claim will be paid.” The four exceptions to the general right of access to records are:
1) psychotherapy notes;
2) information compiled in reasonable anticipation of, or use in, a civil, criminal or administrative action and proceeding;
3) where access is prohibited by the Clincial Laboratory Improvements Amendments of 1988: or
4) records that are exempt under the regulations of the Clinical Laboratory Improvements Amendment. The Clinical Laboratory Improvements Amendments of 1988 is an act which forbids laboratories doing tests on human specimens to disclose the results to anyone except the individual or entity who requested the test.
The definition of “psychotherapy notes” is “ notes recorded in any medium by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session.” Psychotherapy notes are intended to refer to a mental health professional’s own personal notes of a therapy session. Notes do not count as psychotherapy notes unless they are kept separately from the patient’s medical chart. Reviewable Denial of Access to Re
Under HIPAA, other than the unreviewable reasons discussed below, the right of a patient to see his own chart can be restricted in only three circumstances. Each of these circumstances is reviewable by an appeal process.
First, a licensed health care professional may deny access if in the exercise of his professional judgement it is determined that such access is “reasonably likely to endanger the life or physical safety of the individual or other person.” Under this reason for denial, covered entities may not deny the access on the basis of the sensitivity of the health information or the potential for causing psychological or emotional harm. A health care professional must find that the individual has exhibited suicidal or homicidal tendencies and that access to the records would reasonably result in murder, suicide or other physical violence.
Second, there is a reviewable exception when the requested information relates to another person (other than the health care provider) and in the professional judgement of the licensed health care professional, the access would likely cause substantial harm to such person.
Third, if the personal representative of an individual makes the request rather than the individual himself, the request may be denied if the provision of access to records to the personal representative is reasonably likely to cause substantial harm to the individual or other person.
This scheme is somewhat different from that found in the New York Mental Hygiene Law. Under New York law, the treating practitioner may review the information requested. If after consideration of all factors, the practitioner determines that the requested review could reasonably be expected to cause substantial and identifiable harm to the patient, client or others, the facility may deny access to all or a part of the record and may grant access to a prepared summary of the record.
Unreviewable Denial of Access to Records.
Under HIPAA, there are five areas where an entity may deny access to records without an opportunity for review of this denial. The areas are:
1) the exceptions to the right of access described above
2) the request of a prison inmate to see his records if obtaining such copy would jeopardize the health, safety, security, custody or rehabilitation of the prisoner or other inmates or the safety of the correctional staff. 3) if the protected health information is contained in records subject to the Privacy Act;
4) the information was obtained from someone other than a health care provider under a promise of confidentiality and the access would be reasonably likely to reveal the source of the information.
5) a research subject’s request to see his records during research, if the consent form for the research advised that access to records would be suspended during research and the patient signed the consent form. Process of Review of Denial of Access
The review of a denial of the access is to be conducted by a health care professional designated by the covered entity. This professional may not have been directly involved in the original denial of the request for access. The review must be conducted in a reasonable time period but the regulations do not impose deadlines on any entity. There is no provision for judicial review of this denial.
New York’s review procedure for a denial of access appears to be more helpful to consumers. Under the New York Mental Hygiene Law, if access to a psychiatric record is denied, a patient has the right to appeal for review by the Clinical Records Access Review Committee. A client must be notified by the facility of his right to a review of the denial by the appropriate clinical record access review committee. If the client requests this review, the facility must within ten days of the request, transmit the record to the chairman of the appropriate committee with a statement setting forth the specific reasons access was denied. If access is denied by the records access review committee, a patient has a right to seek judicial review of this denial. Court review must be commenced within 30 days of receiving notification of the committee decision.Procedure for Correcting Records
Under HIPAA, an individual has the right to have a covered entity amend protected health information or records about the individual in a designated record set. An individual’s request for amendment may be denied if the health information or record:
1) was not created by the covered entity;
2) is not part of the designated record set;
3) would not otherwise be available for inspection by the individual;
4) is accurate and complete.
An individual should make a request for the amendment in writing. The entity may require [that omit DN] the individual to provide reasons to support a requested amendment to a record. An entity must act on the request within 60 days of the request for an amendment although this time may be extended once for 30 days if it notifies the individual in writing of the reasons for the delay.
If the entity agrees to make the amendment to the consumer’s record it must do so and make a reasonable effort to inform others about the amendment including persons identified by the consumer as having the information and any persons that are known by the entity to have the records. If the entity denies the consumer’s request to amend the record, the entity must provide a timely written denial. The consumer can then submit a written statement disagreeing with the denial. This information must be appended to the record and included in any future disclosure.
Under the New York Mental Hygiene Law, an individual may challenge the accuracy of the information maintained in his clinical record and may require that a brief written statement prepared by him concerning the challenged information be inserted into the clinical record. This statement shall become part of the permanent part of the record and shall be released whenever the clinical record at issue is released. The information to be challenged shall be only factual statements and shall not include a provider’s observations, inferences or conclusions.
For information concerning access to records, confidentiality or sealing of records, or for other questions concerning the mental health laws, please contact the PAIMI (Protection and Advocacy for the Mentally Ill) program at Neighborhood Legal Services, 716/847-0650.
Stefan, Susan, Q&A, “What effect do the recently promulgated HIPAA regulations on privacy of records have for the rights of my clients to access their own records?”, Center for Public Representation, August 2002
Clemens, Jane F., New Federal Regulations Expand Protections For Privacy of Health Records,
New York State Bar Journal, June 2002.
Flannery, John, Paley, Eric, and Roland, M.K. Gaedecke, With HIPPA deadlines on horizon, what’s required?, Buffalo Law Journal, September 26, 2002
EXHIBIT G More protections for patients and psychologists under HIPAA HIPAA's psychotherapy notes provision safeguards sensitive patient information.
BY JENNIFER DAW HOLLOWAY
Though the mention of the Health Information Portability and Accountability Act (HIPAA) privacy rule compliance date--April 14--can make some psychologists anxious, most applaud the new law for increasing privacy protections.
Especially interesting to practitioners is the psychotherapy notes provision, says Russ Newman, PhD, JD, APA's executive director for practice. The provision recognizes that certain kinds of mental health information need to be protected more than other types of information. Under HIPAA, psychotherapy notes are defined as "notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private counseling session." These notes, which capture the psychologist's impressions about the patient and can contain information that is inappropriate for a medical record, are similar to what psychologists have historically referred to as "process notes."
HIPAA affords psychotherapy notes more protection--most notably from third-party payers--than they'd been given in the past. Under HIPAA, disclosure of psychotherapy notes requires more than just generalized consent; it requires patient authorization--or specific permission--to release this sensitive information. And, whereas in the past insurance companies have requested entire patient records--including psychotherapy notes--in making coverage decisions, now health plans cannot refuse to provide reimbursement if a patient does not agree to release information covered under the psychotherapy notes provision.
"In the past, patients could refuse to have this type of information released, but then the company might refuse to cover services," notes Newman. "The HIPAA privacy rule protection stops that kind of practice from taking place."
Psychologists take note
The privacy rule gives rights to health professionals, as well as to their patients. Under the new law, psychologists can decide whether to release their psychotherapy notes to patients, unless patients would have access to their psychotherapy notes under state law (see the article about HIPAA and state laws in last month's Monitor). Though the privacy rule does afford patients the right to access and inspect their health records, psychotherapy notes are treated differently: Patients do not have the right to obtain a copy of these under HIPAA. And when a psychologist denies a patient access to these notes, the denial isn't subject to a review process, as it is with other records.
There is a catch in the psychotherapy notes provision. HIPAA's definition of psychotherapy notes explicitly states that these notes are kept separate from the rest of an individual's record. So, if a psychologist keeps this type of information in a patient's general chart, or if it's not distinguishable as separate from the rest of the record, access to the information doesn't require specific patient authorization. According to the Department of Health and Human Services (HHS), it makes good sense to keep the notes separate since this type of information should not be available automatically.
This may, says Newman, be a practical difference from the way some psychologists have previously stored patient information. But, "if psychologists want higher protections for psychotherapy notes, then they should keep the information separate," he urges.
Daniel Abrahamson, PhD, professional affairs coordinator for the Connecticut Psychological Association, adds that psychologists "shouldn't jump the gun." Keeping records separate is an option and "each practitioner will need to determine whether the benefits of maintaining extra protection outweigh keeping the records distinctly separate from medical records," he says. In other words, some psychologists may decide that, for some patients, the information doesn't particularly need the extra level of protection. If a particular treatment evolves and the psychologist wants to keep the psychotherapy notes separate, he or she can choose to do that. "It's part of good clinical judgment," says Abrahamson. "In the past, clinicians didn't include some information in a record and therefore wouldn't be able to later document that information. Now they have the option to include detailed content in separate notes."
In addition to keeping these notes separate from other patient information, psychologists should be aware, says Newman, that there are certain parts of a record that are expressly not considered psychotherapy notes--and that don't require patient authorization for disclosure--under the HIPAA privacy rule. This information includes medication prescription and monitoring, counseling session start and stop times, modalities and frequencies of treatment, results of clinical tests, and any summary of diagnosis, functional status, treatment plans, symptoms, prognosis or progress.
This portion of the rule is likely to leave some "potential for interpretation," says Newman. "What if a managed-care company says it needs a summary of the themes from psychotherapy sessions? They may say that's outside the psychotherapy notes provision. We'd argue that divulging themes of the conversations in psychotherapy is tantamount to giving away the whole conversation," he says.
In the same vein, testing information, like summary information, isn't included under psychotherapy notes. APA submitted comments to HHS on both the proposed and final rules asking that psychological test data be included in the provision. Disclosing this type of information, says Newman, could divulge intimate details about a patient much like the information from psychotherapy sessions. Unfortunately, he says, HHS declined to expand the definition.
Despite the exclusion of certain information, however, the psychotherapy notes provision should be heralded "as a significant victory for privacy advocates," says Nanci Klein, PhD, professional affairs coordinator for the Utah Psychological Association. "Practitioners have long found it onerous to have to release psychotherapy notes for additional treatment authorization by managed-care companies." Now, she says, managed-care companies are only entitled to certain types of information, not including psychotherapy notes.
"I think this defines the psychologist as the treating expert whose professional analysis and opinion represent the core information necessary for making judgments about the necessity for continued treatment," she adds.
This article is the second in a three-part series on HIPAA topics. The next piece, on HIPAA's minimum necessary requirement, will appear in March.