In Brief

The U.S. Department of Health and Human Services (DHHS) has moved into its next stage of writing regulations for national, comprehensive rules on medical records privacy, having received thousands of comments over two and a half months of public review.

Final regulations were expected this year. DHHS officials have already indicated, however, that review may take longer than expected because of the large number of comments. Implementation is set at two years after DHHS publishes the final rules.

The rules were mandated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). That law stipulated that if Congress did not pass comprehensive legislation on the issue by August 1999, DHHS should write the rules. Congress failed to pass the legislation, so DHHS published the 147 pages of proposed regulations and information last November.

Congress could also take up the issue again this year or next, according to observers of the process.

APA comments to DHHS on the regulations make it plain there are various implications for psychologists. Practitioners fear that the rules will weaken the patient record protections provided for by law. Scientists say that some of the new restrictions could be detrimental to research, without any real increase in the protection of participants' privacy.

Since the comment period closed, APA government relations staff has met with DHHS officials to further press for consideration of the issues for mental health records in particular. During the comment period the association had alerted its divisions and the state psychological associations about the need to comment, and it met with administration officials as part of a coalition of mental health provider groups.

The regulations on disclosures allowed for medical records contain a special exception for psychotherapy notes. Patients must authorize disclosure of psychotherapy notes before the notes may be given to managed health plans or other health providers and their agents for "treatment, payment and health care operation purposes."

APA's Practice Directorate seeks further protections, noting that psychologists and other mental health professionals typically create and maintain records in addition to the psychotherapy notes, and the privacy of those should be assured also.

The comment period on the rules ended Feb. 17.

--K. FOXHALL

Further Reading

The rules and related information are available at http://aspe.hhs.gov/admnsimp/. The rules were published in the Nov. 3 Federal Register.