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7 Psych. Inj. & L. 1 (2014)

handle is hein.journals/psyinjl7 and id is 1 raw text is: Psychol. Inj. and Law (2014) 7:1-8 DOI 10.1007/s12207-013-9158-7 Are Forensic Evaluations Health Care and Are They Regulated by HIPAA? Bruce G. Borkosky - Jon M. Pellett - Mark S. Thomas Received: 22 August 2012 /Accepted: 1 April 2013 /Published online: 8 June 2013 © Springer Science+Business Media New York 2013 Abstract Forensic mental health providers (FMHPs) typi- cally do not release records to the examinee. The Health Insurance Portability and Accountability Act (HIPAA) fed- eral regulations might change this position, given that they have created a basic right of access to health care records. This legislation has led to a disagreement regarding whether HIPAA regulates forensic evaluations. The primary argu- ment (and the majority of scholarly citations) has been that such evaluations do not constitute health care. Specifically, in this position, the nature and purpose of forensic evaluations are not considered related to treatment (amelioration of psychopathology) of the patient. In addi- tion, it asserts that HIPAA applies solely to treatment ser- vices; thus, forensic evaluations are inapplicable to HIPAA. We describe the evidence for and against this argument, the strengths and limitations of the evidence, and recent court decisions related to it. The weakest part of the HIPAA does not regulate forensics argument is that HIPAA has no exclusion criteria based on type of services. It only creates an inclusion criteria for providers; once covered, all ser- vices provided by that provider are thence forward cov- ered. Authoritative evidence for patient access can be found in the HIPAA regulations themselves, the US Department of Health and Human Services' commentaries, additional statements and disciplinary cases, the research literature, other agency opinion, and legal opinion. It B. G. Borkosky (W) Independent Practice, Sebring, FL, USA e-mail: DrBorkosky@gmail.com J. M. Pellett Barr, Murman, & Tonelli, Tampa, FL, USA e-mail: JPellett@barrmurman.com M. S. Thomas Thomas Health Law Group, Gainesville, FL, USA e-mail: mark@thomashlg.com appears that the evidence strongly suggests that, for those forensic mental health practitioners who are covered enti- ties, HIPAA does apply to forensic evaluations. The impli- cation is that FMHPs potentially face various federal, state, and civil sanctions for refusing to permit patient access to records. Keywords HIPAA - Patient access rights - Forensic evaluations - Medical records - Health care Introduction Forensic mental health providers (FMHPs) sometimes refuse to release records to third parties (Barsky & Gould, 2002; Bush & Martin, 2006a; Frankel & Alban, 2011), even when the patient signs an authorization for disclosure. Some FMHPs refuse to release raw test data to the courts, and others refuse to release records to nonpsychologists (Lees-Haley, Courtney, & Dinkins, 2005). Still others refuse to permit examinees to view or copy their records; indeed, it has become common practice (Fisher, 2009). This has been an ongoing controversy, at least since release of the 1992 APA Ethical Principles (COPTAA, 1996; Erard, 2004; Lees-Haley & Courtney, 2000). Refusing patient access appears to be the majority view, as expressed by recent comments on forensic listservs (psylaw-l@listserv.unl.edu). The reason(s) for this view are unclear, but we do note that patient access rights are a recent phenomenon. We have described various argu- ments for and against patient access and the rise of patient access rights (Borkosky, Pellet, & Thomas, manuscript sub- mitted for publication). The current APA Forensic Specialty Guidelines echo this ethos, ascribing the right of access to the referral source: ...forensic examinees typically are not pro- vided access to the forensic practitioner's records without the consent of the retaining party... and ...access to records by e Springer

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