14-472-1 Me. Code R. § A-IX

Current through 2024-51, December 18, 2024

Section 472-1-A-IX - CONFIDENTIALITY OF AND ACCESS TO MENTAL HEALTH RECORDS

A. Recipients have the right to confidentiality and to access to their record.

B. All information regarding mental health care and treatment shall be confidential except as otherwise provided below.

C. A legally emancipated recipient and an unemancipated recipient's legally responsible parents, guardians or custodians shall be notified, upon admission or .intake to any facility or program of:

(1) what records will be kept, including any duplicate records;

(2) how the recipient and legally responsible parents, guardians or custodians may see those records;

(3) the use to which the records will be put;

(4) what will happen to the record after the recipient leaves the facility or program;

(5) how to add information to the records;

(6) how to obtain copies of material in records;

(7) the limits of confidentiality, as provided in J below; and

(8) his or her rights pursuant to these rules and the Settlement Agreement in Bates v. Peet, as applicable.

D. The legally emancipated recipient or the legally responsible parents, guardians or custodians of an unemancipated minor recipient shall be informed when the possibility exists that the costs of the recipient's care, treatment, education or support will be borne by a third party. Such information shall indicate that clinical information may be used to substantiate charges. The emancipated recipient or the legally responsible parent, guardian or custodian of an unemancipated recipient may indicate that he or she will bear such costs privately rather than allow the release of information.

E. The legally emancipated recipient or the legally responsible parents, guardians or custodians of an unemancipated recipient shall have the right to written and informed consent prior to release of any information to any agency or individual whether or not such agency or individual's directly involved in the recipient's treatment or supervision thereof, except as provided in J below. Such informed consent shall include:

(1) Identification of the specific information to be disclosed;

(2) Notice of the right to review mental health records upon request at any reasonable time including prior to the authorized release of such records;

(3) The name of persons or agencies to whom disclosure is to be made;

(4) The purpose to which the information is to be put;

(5) The length of time within which the information is to be disclosed not to exceed one year; and

(6) Notice of the right to revoke consent to release at any time.

F. A legally emancipated recipient or an unemancipated recipient's legally responsible parents, guardians or custodians have the right to written informed consent for release of case record material which discloses the recipient's identity to students when they temporarily become a part of treatment team, except when the student is involved in a professional program which has a formal relationship with the facility or agency.

G. All personnel of agencies or programs, including students or trainees, shall be trained regarding confidentiality and shall be held to confidentiality statutes, rules and policies.

H. Duplication:

(1) If the facility or agency duplicates a portion of, or the entire care record of a recipient pursuant to any exception contained in J.1.a. through e. below a legally emancipated recipient or his or her legally responsible parent, guardian or custodian shall be notified, if possible, as to the purpose of such duplication.

(2) Copies of original records shall be noted as such.

I. Separate personalized records shall be maintained when group treatment methods are employed except that individualized record keeping shall not be required in instances in which conjoint family treatment services are provided, under the following conditions:

(1) Informed consent must be obtained to the conjoint treatment recordkeeping, pursuant to B.IV., and such consent shall be documented by using a Department-approved form. This form shall be made a part of the permanent record.

(2) If any family member previously received treatment other than conjoint family treatment services at the facility, agency or program, or received conjoint family treatment services as a member of a different family group at the facility, agency or program, an extracted individualized discharge summary shall be placed in that family member's individualized record.

(3) If any family member refuses to have treatment records blended, separate records must be maintained for that family member.

(4) If any family member requests the release of his or her records subsequent to the termination of conjoint family treatment services, the facility, agency or program shall respond to this request by providing an extracted individualized discharge summary. The facility, agency or program shall not release information concerning an individual family member without that family member's written consent.

(5) Nothing in these regulations shall preclude individualized recordkeeping by any program, facility or agency. Intake data, evaluations or assessments collected or performed for the purposes of determining eligibility for conjoint family treatment services are not treatment records for the purposes of this exception.

(6) This exception shall be reviewed no later than June 30, 1996 to assess the impact and effect of these rules. The review shall include representatives of the Bureau of Children with Special Needs, the Division of Mental Health, the Division of Quality Assurance, the Office of Consumer Affairs, the Office of Advocacy and other interested parties designated by the Commissioner of the Department of Behavioral and Developmental Services.

J. Exceptions:

(1) Information may be released without written informed consent, as provided by Maine statute (Section 34-B M.R.S.A. §1207 sub-§§ 1B and 1C) in the following circumstances:

a. Disclosure may occur as necessary to carry out the statutory functions of the department or statutory hospitalization provisions.

b. Disclosure may be made as necessary to allow investigation by the Protection and Advocacy Agency for Persons with Disabilities in Maine, or the Office of Advocacy.

i. Disclosure may be made to the Department of Human Services to cooperate in a child protective investigation or other child protective activity pursuant to an interdepartmental agreement promulgated as a rule by the Department of Behavioral and Developmental Services.

c. Disclosure may be ordered by a court of record subject to any limitations contained within the Maine Rules of Evidence.

d. Disclosure may be allowed of biographical or medical information concerning the recipient to commercial or governmental insurers or any other corporation, association or agency from which the Department or licensee of the Department may receive reimbursement for the care, treatment, education, training or support of the recipient.

i. Such disclosure may be made only after determination by the Chief Administrative Officer of the facility or designee that the information to be disclosed is necessary and appropriate.

e. Disclosure of information, including recorded or transcribed diagnostic or therapeutic interviews concerning any recipient may be allowed in connection with any educational or training program established between a public hospital and any college, university, hospital, psychiatric counseling clinic or school of nursing, provided that in the disclosure or use of any such information as part of a course of instruction or training the recipient's identity shall remain undisclosed.

i. Such disclosure shall be conducted with care so that identifying material is disguised or altered according to uniform standards consistent with deidentification.

f. Disclosure may be made to persons involved in statistical compilation or research conducted in compliance with these rules pursuant to Section XI.

i. In the case of such disclosure records shall not be removed from the facility and reports shall preserve the anonymity of the recipient. Data which do not identify the recipient, or coded data, may be removed from the facility, provided the key to such code shall remain at the facility.

(2) Information regarding the status and medical care of a recipient may be released by a professional, upon inquiry by law enforcement officials or treatment personnel, if an emergency situation exists regarding the recipient's health or safety.

(3) Confidentiality may be breached if there is clear and substantial reason to believe that there is imminent danger of serious physical harm inflicted by the recipient on him or herself or upon another.

a. Information regarding such danger of harm shall be immediately given to supervisory personnel or appropriate professionals, civil authorities, and any specific person threatened by direct harm.

K. Recipient Access to Records

(1) The recipient and the recipient's legally responsible parents, guardians or custodians have the right to review the recipient's record at any reasonable time upon request, including prior to its authorized release. Such records shall be made available within three working days of such request.

(2) Review of the case record shall occur under the supervision of a designee of the Chief Administrative Officer of the facility or program.

(3) In cases in which there exists a reasonable concern of possible harmful elect to the recipient if the review of the recipient or his or her legally responsible parents, guardians or custodians occurs, the Clinical Director or designee shall supervise the review.

a. In cases where access of the legally responsible parents, guardians or custodians to the recipient's record would create documented danger to the physical or mental well being of the recipient, the Clinical Director or designee may refuse to disclose a portion of or the entire record to the legally responsible parents, guardians or custodians and such refusal shall be documented in the case record.

(4) In cases in which a recipient is unable to review the record at the program site, a certified copy of the record shall be forwarded to a professional, designated by the recipient, in the recipient's area, who shall supervise review of the record.

(5) In cases in which the recipient or his or her legally responsible parents, guardians or custodians, after review of the recipient's record, requests copies of the record, or parts of the record, such copies shall be made available to the recipient, legally responsible parents, guardians or custodians at the actual cost of reproduction.

(6) A recipient may add written material to his or her record in order to clarify information which he or she feels is false, inaccurate or incomplete.

(7) Material which was obtained from another individual or facility through assurance of, confidentiality shall not be available to the recipient or the legally responsible parent, guardian or custodian in reviewing the recipient's record. A summary description of such material shall be provided to the recipient or the legally responsible parent, guardian or custodian, and information shall be provided regarding the process to gain access to such material including aid in securing appropriate release of information.

L. Nothing in these regulations should be viewed as an abrogation of the rights of recipients to confidentiality of records under federal or state law, particularly with regard to substance abuse records.

14-472 C.M.R. ch. 1, § A-IX