The Honorable Joseph R. Pitts: There are some experts who believe that HIPAA and FERPA are sometimes not well understood by families and health providers. In addition, some providers, especially those who are asked to provide private health information before establishing a professional relationship with the patient, are concerned about liability. If fear and lack of knowledge are factors in applying HIPAA and FERPA, would training be a better option, in some cases, to changing the laws related to both HIPAA and FERPA?
Dr. Michael Welner: Better explaining HIPAA and FERPA will change nothing. Laws are “not understood,” by not just the physicians, but the well-lawyered institutions who support them. As hectoring as hospital risk management departments are about training, it is safe to conclude that if providers “lack knowledge,” it is specifically because the attorneys and executives of their facilities feel they are better off not knowing.
Clarifying FERPA was the solution recommended after the 2007 Virginia Tech massacre, when investigations described “information silos” that were not communicating about Cho Seung Hui’s slow disintegration, certainly not to the close-knit family to whom he showed only respect.
Even with attention to the claimed misunderstanding of FERPA, tragedies originating on campus with troubled youth continue. These include even those identical to Blacksburg, for example, the mass shooting by a University of Colorado Ph.D student, James Holmes, in 2012, and Pima Community College’s Jared Loughner.
When the higher educated do not respond to well documented academic articles that educate, perhaps it is because they do not wish to be. One never has to understand what one avoids having to understand.
Education has demonstrated that even better training and awareness about FERPA won’t eliminate the tragedies that stirred this committee to action. All it takes is one information silo. And so it is with HIPAA and the medical community. Why is this?
HIPAA’s emphasis on privacy as sacrosanct. Current treatment providers respond to the spirit of HIPAA rather than its letter because liability fears are not rational and not explained away. Institutions do not reward psychiatrist initiative any more than they reward surgeons who take chances with good intentions. This is why mental health professionals, practicing defensively in an era of unregulated liability litigation, do not want to do anything to risk angering a patient or trip-wiring the bureaucrats of risk management. Education would not overcome their discomfort over breaching the current version of HIPAA, either.
And, since imminent dangerousness or life threatening conditions are so often arguable assessments, psychiatrists simply invoke HIPAA as a pretext to remain silent and inaccessible and avoid the drama. Having practiced in institutions, there is no understating the intellectually sclerotic leadership that so consistently controls day to day medical practitioner decision-making with pathological risk aversive policy (overt and implied). HIPAA’s increasing dominance has browned out the standing of family supports in treatment; mental health professionals have difficulty shifting into involving them.
HIPAA as it is now worded is promoting psychiatrist and psychologist passivity and inaccessibility in the face of crisis and deteriorating clinical situations that families can help to defuse. Sadly, it is the path of least resistance to avoid responsibility for patients who are drowning in their mental breakdowns or crises by simply hiding behind HIPAA to shut families out.
That is a day to day reality for many Americans, not just those such as Pete Earley and Pat Milam, who both testified to this effect before the Subcommittee on Oversight. It is also my testimony that this is how mental health professionals typically, if not universally operate.
HR 3717 protects providers who care to be responsibly available to valuable and devoted family and caregivers in enabling crisis management to extend beyond the doctor’s office. It encourages treatment providers that there are professionally acceptable alternatives to hiding in HIPAA when the patient’s world is clearly on fire, and to involve caregivers in the bucket brigade even if the patient later curses us all for being wet.
