HIPAA Compliance Strategies

Report on Virginia Tech Shooting Cites Need for Further HIPAA Privacy Guidance

Reprinted from the July 2007 issue of REPORT ON PATIENT PRIVACY, the industry's most practical source of news on HIPAA patient privacy provisions.

A report sent to the president on June 13 underscores that information sharing is critical to prevent tragedies such as the Virginia Tech shooting, but that such sharing "faces substantial obstacles." Mental health care providers especially are confused about the relationship between state laws and federal laws, according to the report, which is by HHS, the Department of Justice and the Department of Education.

"States, which have long sought to address the difficult balance among privacy, security and ensuring that people in need receive appropriate care, also report that they may be revisiting their approach in coming months, as tragic events such as Virginia Tech sharpen their focus on whether there is a need to implement more effectively decisions that have already been made," the report says.

Federal officials from the three departments interviewed officials and experts from mental health, education and law enforcement communities in 12 states. "We repeatedly heard reports of 'information silos' within educational institutions and among educational staff, mental health providers, and public safety officials that impede appropriate information sharing," it says. "These concerns are heightened by confusion about the laws that govern the sharing of information. Throughout our meetings and in every breakout session, we heard differing interpretations and confusion about legal restrictions on the ability to share information about a person who may be a threat to self or to others."

The officials and experts who were interviewed were especially confused about HIPAA and the Family Education Rights and Privacy Act (FERPA), the feds found. "[T]here was significant misunderstanding about the scope and application of these laws and their interrelation with state laws. In a number of discussions, participants reported circumstances in which they incorrectly believed that they were subject to liability or foreclosed from sharing information under federal law. Other participants were unsure whether and how HIPAA and FERPA actually limit or allow information to be shared and unaware of exceptions that could allow relevant information to be shared.

Among its recommendations, the report says that HHS and the Education Department should "develop additional guidance that clarifies how information can be shared legally under HIPAA and FERPA and disseminate it widely to the mental health, education and law enforcement communities."

At the state and local level, the report says officials should:

• Review the applicable federal laws, but also clarify and promote a "wider understanding" about state laws' limits on sharing of information on those who may pose a danger to themselves and others. Also, examine state laws to see if changes are needed for proper balances of privacy and security.
• Increase information sharing and collaboration among communities, educators, mental health officials and law enforcement officials.
• Provide accurate information so family members, educational administrators, mental health providers, etc. understand when they can legally share and receive information about mental illness.

Reece Hirsch, who is a partner with the Sonnenschein Nath & Rosenthal law firm, says it is noteworthy that several of those interviewed for this report referred to the complicated relationship between federal and state privacy laws. "It just goes back to the patchwork approach to privacy that the U.S. takes. The relationship between FERPA, HIPAA and state and federal laws governing mental health information is very complicated, which creates plenty of challenges for non-lawyers seeking to make sense of these often-overlap- ping laws and regulations."

For facilities that are within educational institutions [e.g., school clinics], this is probably most relevant, he says. CEs that deal with mental health information may be affected as well. "They could take some comfort from the fact that guidance may be forthcoming," Hirsch tells AIS.

Read the entire report at www.hhs.gov/vtreport.html#intro.

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