Current through 2024-13, March 27, 2024
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
recordkeeping 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 recordkeeping, 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 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 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 Behavioral and
Developmental Services.
J. Exceptions
1. Information may be released without
written informed consent, as provided by Maine statute ( 34-B M.R.S.A.,
section1207, 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 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 Behavioral and Developmental
Services.
ii. Disclosure may be
made to the Adult Protective Services of the Department of 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., section1207, 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.