Newletter Masthead
April 2001· Vol. 26, No. 2, pp. 1-3

I'll take HIPAA for 500, Alex

Jeffrey L. Metzner MD

Jeopardy question-the answer is:

This rule implements the privacy requirements of the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996.

Jeopardy answer (for $500):

What is 45 CFR Parts 160 and 164 (Standards for Privacy of Individually Identifiable Health Information: Final Rule)?

Forensic/treatment question:

What is 45 CFR Parts 160 and 164?

Despite the simplification subtitle, this rule is explained in a mere 1518 pages, available on the web at Better known as HIPAA (pronounced "hippa"), the Department of Health and Human Services tells us that "the use of these standards will improve the efficiency and effectiveness of public and private health programs and health care services by providing enhanced protections for individually identifiable health information. These protections will begin to address growing public concerns that advances in electronic technology and evolution in the health care industry are resulting, or may result, in a substantial erosion of the privacy surrounding individually identifiable health information maintained by health care providers, health plans and their administrative contractors."

HIPAA, which was primarily designed to protect health insurance coverage for workers and their families when they change or lose their jobs and to ensure confidentiality of individual health information, was signed by President Clinton in 1996. Under HIPAA, Congress was authorized to establish uniform privacy standards for health information by mid-August 1999. If Congress failed to enact legislation within the specified timeframe, HIPAA mandated the Secretary of Health and Human Services (HHS) to issue regulations within six months.

Few were surprised when mid-August 1999 came and went without such legislation.

The proposed rule that HHS published in August 1999 covered only electronic medical records and paper printouts of those records. "No need to worry," thought many physicians because "my records are not electronic." The final rule, published during December 1999 (after HHS received over 50,000 comments on the proposed rule) was expanded to cover all types of individually identifiable health information, including paper records that were never electronically stored.

The APA was very active in attempting to impact the final rule by emphasizing issues related to obtaining adequate informed consent from patients concerning release of medical records, privilege procedures, and by educating HHS about special issues related to psychiatric records. Problems remained in the final rule related to unreasonable police access to medical records, business partner provisions (potentially resulting in overly broad physician liability), and unreasonable loopholes (resulting in lack of confidentiality of records). In addition, the government estimated the cost of implementation for offices and clinics of physicians per year would be at least $3700 during the first year and $2000 per year for years 2-10. The costs for most psychiatrists would be considerably less due to the nature of most psychiatric practices.

Due to a technicality, the final rule start-up date was delayed to mid-April with physicians having 2 years to comply with its provisions or face significant civil penalties. The insurance industry has heavily lobbied the Bush administration to reopen the rule making process for public comments, which would significantly delay implementation of the final rule. At the time that I am writing this column, it is unclear whether it will be reopened. My political instincts tell me it will.

HIPAA and you So why should forensic psychiatrists be interested in HIPAA? First, most forensic psychiatrists also have a clinical practice. Consequently, we will need to be aware of the HIPAA requirements in order to implement appropriate compliance procedures. Sooner or later, we will be all too familiar with the following terms and their definitions (as per HIPAA): consent, business associate, covered entity, health care clearinghouse, health care plan, designated record set, individually identifiable health information, marketing, and others (the reading gets quite tedious after the first few hundred pages). Expect a new industry to arise that will market services to physicians concerning HIPAA compliance.

Second, HIPAA should be another wake-up call that the new technology will continue to impact forensic psychiatrists in a variety of arenas. Not only do many forensic psychiatrists have web pages, but also so do many plaintiffs (which often have very interesting legal ramifications). Therapy is now being provided on the Internet and the question of e-Tarasoff warnings are being raised. Firewalls have taken on a new meaning for many of us as we become more dependent on the Internet and "feel the need for speed" (i.e., high-speed Internet access).

I expect that we will begin to see more sessions at our annual meetings focusing on the new technologies and forensic psychiatry. We do live in interesting times.

Other (unrelated) information
The JAAPL (28:124-165, 2000) had a very useful special section on the APA's "Resource Document on Mandatory Outpatient Treatment." RAND has just published a study entitled "The Effectiveness of Involuntary Outpatient Treatment: Empirical Evidence and the Experience of Eight States" (see This project was funded by the California Senate Committee on Rules in order to assist the legislature in considering proposals to amend the involuntary treatment statute, the Lanterman-Petris-Short (LPS) Act. This is good reading and was very consistent with the APA's resource document. An important finding was the "need for investments to be made in developing and sustaining the infrastructure for implementation of involuntary outpatient commitment-including intensive clinical services and supports, tracking systems for supervision and monitoring, and effective enforcement mechanisms."

These findings were essentially consistent with another interesting publication concerning the California mental health system published during November 2000 by the Little Hoover Commission (Being There: Making a Commitment to Mental Health) that concluded adequate information had not been developed to fully assess the need for LPS reform (see

AMA membership

The response to our AMA recruitment drive has been disappointing. I think the issues are clear and do not require repetition. Perhaps the membership has spoken clearly which means that our ability to effectively influence the AMA in areas important to the practice of forensic psychiatry will be limited. Or maybe AAPL members expected that others would jump at the chance to join the AMA for about $130 (by using the web and APPL's one time dues waiver) and decided their membership was not needed. I find my weekly JAMA and online access to AMA journals to be well worth the price of AMA membership. It is not to late to join but we need you to do it now. Please do not forget to inform our central office of your new membership status and request for a one time only dues waiver.