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Jeremy Hill

Office of the Attorney GeneralNovember 13, 2015

2015 WL 9264836 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2015-00391
*1 November 13, 2015

Re: Provision of Electronic Health Records Related to Mental and Behavioral Health to MS-HIN

 
*1 Jeremy Hill
*1 Executive Director
*1 Mississippi Health Information Network
*1 805 South Wheatley, Suite 540
*1 Ridgeland, MS 39157
Dear Mr. Hill,
*1 Attorney General Jim Hood has received your opinion request and has assigned it to me for research and reply.
 
INQUIRY
 
*1 You have asked for an official Attorney General's opinion on whether, under current law, mental and behavioral health records may lawfully be submitted by health care providers to, and exchanged by, the Mississippi Health Information Network.
 
BACKGROUND
 
*1 You explain that in 2010, the Mississippi legislature created the Mississippi Health Information Network (“MS-HIN”), which is a public-private partnership created “for the benefit of all citizens of this state,” to allow for “the exchange of medical records and information among multiple health care providers to better enable them to provide health care to patients.” See, Miss. Code Section 41-119-1, et seq.
*1 Your letter states:
*1 Under this system, patient information collected in electronic health records (EHRs) can be shared with and among providers on a need to know basis. For example, a patient of Doctor A is involved in an accident and goes to an ER. The ER physician will be able to access the patient's entire medical history, including prescriptions, labs, x-rays, etc. This system will also be useful in the event of a natural disaster, when displaced persons often have lost medicines and records and health care workers have no idea about the medications that patient has taken. Through the use of MS-HIN, displaced persons can access care from physicians in a location away from the disaster and those physicians can have ready access to the patient's medical history.
 
* * * * *
 
*1 In furtherance of the objective of MS-HIN, electronic health records (EHRs) at hospitals and doctors' offices are (or will be) connected through health information exchanges (HIEs). HIEs have been in existence for a number of years in some parts of the country, but with the passage of several significant federal laws and associated funding sources, HIEs are now common place.
 
APPLICABLE LAW AND ANALYSIS
 
*1 Mississippi Code Section 41-119-7 provides the following duties to MS-HIN's board:
*1 (a) Initiate a statewide health information network to:
*1 (i) Facilitate communication of patient clinical and financial information;
*1 (ii) Promote more efficient and effective communication among multiple health care providers and payers, including, but not limited to, hospitals, physicians, nonphysician providers, third-party payers, self-insured employers, pharmacies, laboratories and other health care entities;
*1 (iii) Create efficiencies by eliminating redundancy in data capture and storage and reducing administrative, billing and data collection costs;
*2 (iv) Create the ability to monitor community health status;
*2 (v) Provide reliable information to health care consumers and purchasers regarding the quality and cost-effectiveness of health care, health plans and health care providers; and
*2 (vi) Promote the use of certified electronic health records technology in a manner that improves quality, safety, and efficiency of health care delivery, reduces health care disparities, engages patients and families, improves health care coordination, improves population and public health, and ensures adequate privacy and security protections for personal health information;
*2 (b) Develop or design other initiatives in furtherance of its purpose; and
*2 (c) Perform any and all other activities in furtherance of its purpose.
*2 Miss. Code Section 41-119-7. (Emphasis added).
*2 Significantly, Section 41-119-13 of the MS-HIN statutes provides for the confidentiality of the health information submitted, providing in part as follows:
*2 (1) The MS-HIN board shall by rule or regulation ensure that patient specific health information be disclosed only in accordance with the provisions of the Health Insurance Portability and Accountability Act [“HIPAA”] of 1996, Public Law 104-191, which governs the electronic transmission of that information.
*2 Therefore, the question of whether certain medical records can be submitted to MS-HIN is dependent on whether those records are otherwise subject to be exchanged without patient consent under HIPAA. While this office generally does not by official opinion interpret and provide guidance under federal law, to answer your inquiry under state law necessarily requires us to examine the provisions of federal law, i.e., HIPAA, related to mental and behavioral health records. We, thus, look to the relevant provisions of HIPAA.1
*2 HIPAA provides in 45 CFR § 164.502 that covered entities, including health care providers, can disclose protected health information without patient consent for, inter alia, “treatment” purposes. “Treatment” is defined as:
*2 ... the provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another.
*2 42 CFR 164.501.
*2 This, of course, allows a patient's several doctors to consult and share information and records in treating that patient. Therefore, since MS-HIN's purpose is to enhance treatment of the patient, generally, medical records may be shared and exchanged via MS-HIN without patient consent, pursuant to 41-119-13.
*2 Your inquiry centers, however, on the submitting and sharing of a certain type of medical record, namely, mental and behavioral health records. You explain that some health care providers have expressed concern about submitting these types of records to MS-HIN. This concern is based upon the fact that one of HIPAA's specific exceptions to the general rule of permitting the sharing of records for treatment is for “psychotherapy notes.” According to HIPAA, records fitting into the definition of “psychotherapy notes” may only be disclosed with patient consent, even for treatment purposes (with certain limited exceptions not relevant here). 45 CFR. 164.508(a)(2).
*3 Psychotherapy notes are expressly defined as:
*3 Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.
*3 45 CFR 164.501.
*3 Clearly, based on this provision, psychotherapy notes may not be submitted to or shared with MS-HIN, because they are not releasable without consent under HIPAA. But, as you state in your letter, “psychotherapy notes” expressly do not include “medication prescription and monitoring,” the “modalities and frequencies of treatment furnished,” etc. All of the types of records expressly excluded from the definition of psychotherapy notes, in our opinion, are to be treated under HIPAA as general medical records and are, thus, subject to being shared for treatment purposes without patient consent. Thus, since these records are releasable without patient consent under HIPAA, Section 41-119-13 would allow these records to lawfully be submitted and shared under MS-HIN.
*3 Finally, we would also point out Section 41-21-97, likewise, supports sharing of mental and behavioral health records without express patient consent when done so in furtherance of treatment of the patient, to-wit:
*3 The hospital records of and information pertaining to patients at treatment facilities or patients being treated by physicians, psychologists (as defined in Section 73-31-3(e)), licensed master social workers or licensed professional counselors shall be confidential and shall be released only: (a) upon written authorization of the patient; (b) upon order of a court of competent jurisdiction; [or] (c) when necessary for the continued treatment of a patient; ...
*3 Miss. Code Section 41-21-97 (emphasis added).
 
CONCLUSION
 
*3 It is the opinion of this office that “psychotherapy notes” may not be submitted and shared with MS-HIN without patient consent. However, those records expressly excluded from the definition of psychotherapy notes may be shared under HIPAA without patient consent for treatment purposes; specifically, “medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.” Thus, these specific records may be shared under HIPAA for treatment purposes without patient consent, and thus, pursuant to 41-119-13 and 41-27-97, may be submitted to MS-HIN without patient consent. (This office was only asked to opine as to the effect of the provisions of HIPAA on the sharing of mental and behavioral health records and does not opine as to any other federal or state laws or regulations.)
*4 If this office may be of further assistance to you, please let us know.
Sincerely,
*4 Jim Hood
*4 Attorney General
*4 By: Ellen O'Neal
*4 Special Assistant Attorney General

Footnotes

You do not inquire about, nor do we opine, regarding drug and alcohol treatment records. Such records are treated differently from behavioral and mental health records and are addressed by a different set of federal regulations, 42 CFR Part 2, which strictly prohibits the sharing of these records for any purpose.
2015 WL 9264836 (Miss.A.G.)
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