Rights of Recipients of Mental Health Services; Part A - IX. Confidentiality and Access to 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 recipient or guardian shall be notified, upon ad mission or intake to any mental health facility or program of:

  1. What records will be kept, including any duplicate records;
  2. How the recipient may see those records;
  3. Thy 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 records;
  6. How to obtain copies of material in records; and
  7. The limits of confidentiality, as provided in J. below.

D. The recipient or legal guardian 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. That information shall indicate that clinical information may be used to substantiate charges. The recipient -or guardian may indicate that he or she will bear such costs privately rather than allow the release of information.

E. The recipient or guardian 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 is directly involved in die recipient's treatment or supervision thereof, except as provided in J below. 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 that 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. Recipients have the right to require written informed consent for release of case record material that 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 that 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 recipient or his or her guardian 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 for service or treatment 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 record keeping, pursuant to B. III., and such consent shall be documented by using a Department-approved form. This form shall be made a permanent part of the treatment record.
  2. If any family member previously revived 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 record keeping 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 December 31, 1995 to assess the impact and effect of these rules. The review shall include representatives of the Bureau of Children with Special Need, the Division of Mental Health, the Division of Licensing, the Office of Consumer Affairs, the Office of Advocacy and other interested parties as designated by the Commissioner of the Department of BDS.

J. Exceptions:

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

    a. Disclosure may occur as necessary to carry out the statutory functions of the department or statutory hospitalization provisions. This shall include obtaining the services of an interpreter in cases in which the recipient does not speak English or is deaf.
    b. Disclosure may be made as necessary to allow investigation by the rights protection and advocacy agency, the Office of Advocacy, or, in the following circumstances, the Department of Human Services.

    i. Disclosure may be made to the Department of Health and Human Services to cooperate in a child Invective investigation or other child protective activity pursuant to an interdepartmental agreement promulgated as a rule by the Department of DHHS.
    ii. Disclosure may be made to the Adult Protective Services of the Department of Health and Human Services in instances in which Adult Protective Services is acting as public guardian or conservator for the recipient.

    c. Disclosure may be ordered by a court of record subject to any limitations contained within the Maine Rules of Evidence.
    d. An oral or written statement relating to the physical condition or mental status of a recipient may be disclosed to the recipient's spouse or next of kin upon proper inquiry:

    i. Outpatient Setting. Before responding to a request for information the recipient or the recipient's guardian shall be asked whether release of confidential information is acceptable. If the recipient or his or her guardian authorizes disclosure, the information shall be disclosed in accordance with that authorization. In the instance where a recipient lacks capacity to authorize release of such information, repeated attempts shall be made to determine capacity to make such a decision and, if capacity exists, to obtain a decision. Efforts to determine capacity and the rationale for termination of such efforts shall be documented.
    ii. Inpatient settings. The physical presence, and physical and mental condition of a recipient shall be immediately disclosed to a recipient's spouse or next of kin upon proper inquiry.

    e. Disclosure may be allowed of biographical or medical information concerning the recipient to commercial or governmental insurers of 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. 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.
    f. Disclosure of information, including recorded or transcribed diagnostic or therapeutic interviews concerning any recipient may be allowed in connection with arty 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. Such disclosure shall be conducted according to uniform standards consistent with deidentification.
    g. Disclosure may be made to persons involved in statistical compilation or research conducted in compliance with these rules pursuant to Section XV. In the case of such disclosure records shall not be removed from the facility and reports shall preserve the anonymity of the recipient. Data that 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 violated 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. Information regarding such danger or harm shall be immediately given to supervisory personnel or clinical mental health professionals who, if they concur in the assessment of imminent danger, shall notify civil authorities and any specific person threatened by direct harm.
  4. A licensed mental health professional providing care and treatment to an adult recipient may provide to certain family members or other persons, in accordance with rules promulgated pursuant to 34-B M.R.S.A., section 1207, sub-section 5, information regarding diagnosis, admission to or discharge from a treatment facility, the name of any medication prescribed, side effects of that medication, the likely consequences of failure of the recipient to take the prescribed medication, treatment plans and goals, and behavioral strategies.

K. Recipient Access to Records

  1. The recipient or the recipient's guardian has 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 care record shall occur under the supervision of a designee of the Chief Administrative Officer of the facility or program.
  3. In cases where there exists a reasonable concern of possible harmful effect to the recipient if the review of the record occurs, the Clinical Director or designee shall supervise the review.

    a. In cases where access of the guardian to the recipient's record would create documented imminent danger to the physical or mental well being of the recipient, the professional may refuse to disclose a. portion of or the entire record to the recipient or guardian.
    b. Written documentation shall be placed in the recipient's record in the event that access to the record or any portion of it is denied based an the above and the reasons for denial.
  4. In cases where 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 where the record is 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.
  6. In cases where the recipient after review of his or her record, requests copies of the record, or parts of the record, such copies shall be made available to the recipient at the actual cost of reproduction.
  7. A recipient may add written material to his or her record in order to clarify information that he or she feels is false, inaccurate or incomplete.
  8. Material that was obtained from another individual or facility through assurance of confidentiality shall not be available to the recipient in reviewing his or her record. A summary description of that material shall be provided to the recipient, and the recipient shall be informed regarding the process of gaining access to that material and shall be offered aid in securing appropriate release of information.