February 14, 2000

U.S. Department of Health and Human Services
Margaret A. Hamburg, M.D.
Assistant Secretary for Planning and Evaluation
Attention: Privacy-P,
Room G-322A, Mary E. Switzer Building,
330 C Street, SW,
Washington, DC 20201

Dear Assistant Secretary Hamburg:

The issuance by the Department of Health and Human Services of proposed regulations on Standards for Privacy of Individually Identifiable Health Information has raised a number of serious concerns to the social work profession. We appreciate the Department’s efforts to address the issue of medical record privacy for electronically stored and transmitted records. We understand that your proposed regulations are a direct result of Congress’s failure to act on comprehensive medical record privacy legislation as called for in the HIPAA legislation. Without the guidance of legislation, DHHS has made fundamental policy decisions that will affect the administration of federal programs and the practice of the majority of healthcare providers and medical facilities in this country.

The National Association of Social Workers (NASW) is the largest membership organization of professional social workers with 155,000 members. Social workers are trained professionals who have bachelor’s, master’s, or doctoral degrees from accredited social work education programs and who meet state legal requirements. Clinical social workers are the nation’s largest group of mental health services providers and are often the only mental health providers in some rural areas (SAMHSA, 1999). NASW promotes, develops and protects the practice of social work and social workers. NASW also seeks to enhance the well-being of individuals, families, and communities through its work and through its advocacy.

Our comments on the proposed regulations (attached to this letter) address in detail our concerns. We specifically highlight the following:

• NASW strongly objects to the fact that the proposed regulations abandon the requirement of written client authorization for release of mental health records. For mental health practitioners, the proposed regulations reverse fundamental underpinnings of ethical and effective mental health treatment. See Jaffee v Redmond, 518 U.S. 1 (1996). NASW urges that mental health treatment records be separated from other medical records for more stringent confidentiality requirements in the regulations consistent with professional standards, legal precedent, and current client expectations.
• A carve out for mental health records is necessary to avoid untenable conflict for mental health providers who ethically are required to obtain written authorization for release of client mental health records. See NASW Code of Ethics, Sec. 1.07. Clinical social workers cannot comply with the proposed regulations without violating their professional code of ethics. The proposed regulations, which allow access to electronically transmitted and stored mental health records for treatment, payment, and operations without requiring prior patient/client written authorization, violate the very nature of effective mental health treatment which is founded on the principle of honoring and protecting the client's confidentiality and privacy.
• The fundamental problem of honoring client confidentiality for mental health care providers is not resolved by simply removing psychotherapy notes from some areas of required transmittal. First, the protection afforded psychotherapy notes should rarely be abrogated and then, based on a court order after notice, an opportunity for the client to object and, if necessary, a hearing. Moreover, a broader range of client mental health information should be protected from standard release than is currently the case under the proposed regulations. This should include medication information, diagnosis, treatment plans, symptoms, prognosis, and progress to date.
• The sheer complexity of the proposed regulations inhibits comprehension, compliance, and implementation. This poses problems for mental health practitioners who often practice in small groups or as solo practitioners.
• NASW objects to the breadth of the state waiver request process. We urge that the federal regulations provide a national floor for privacy and confidentiality of medical records. Permitting states to seek waivers undermines the basic premises established by federal regulations and acts as a disincentive for states considering higher standards.

We are hopeful that our concerns will be addressed in the Final Rule and look forward to working with you to implement a system of confidentiality that first and foremost respects and protects patient confidentiality.

Sincerely,

Josephine Nieves, MSW Ph.D.
Executive Director
Jnieves@naswdc.org

cc:

Chris Jennings
Peter Swire
Gary Claxton
Lisa Rovin

Attachments:

1. Code of Ethics of the National Association of Social Workers.
2. The Social Worker and Protection of Privacy. National Association of Social Workers. Office of General Counsel Law Note.
3. Client Confidentiality and Privileged Communications. National Association of Social Workers. Office of General Counsel Law Note
4. Your Mental Health Rights. A Joint Initiative of Mental Health Professional Organizations.
5. Social Work Speaks – 4^th Edition. NASW Policy Statements.

• "Confidentiality and Information Utilization"
• "Mental Health"