CALLING UPON THE HUMAN SERVICES DEPARTMENT TO SECURE ALL BEHAVIORAL HEALTH PATIENT INFORMATION OBTAINED FROM AUDITED PROVIDERS
by Senator Howie C. Morales (D-Silver City) and Senate President Pro Tempore Mary Kay Papen (D-Las Cruces)
Personal health information is protected from disclosure to unauthorized persons by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). Congress enacted HIPAA because of concern about the ease with which such information could be transmitted via email. HIPAA protects the privacy of health information by regulating how entities such as the Human Services Department (HSD) use and disclose protected health information. Under the federal Health Information Technology for Economic and Clinical Health Act (HITECH), protected health information is not considered secure unless it is rendered “unusable, unreadable, or indecipherable” to persons who should not have it; protected health information is not secure unless it is encrypted, and as a further measure, the media upon which it has been stored or recorded (such as computers, printers or scanners) must be destroyed so that personal health information cannot be retrieved later from it. In addition, federal law provides greater privacy protection for alcohol and drug patient records, prohibiting disclosure without patient consent and applying to any information that would identify the patient as an alcohol or drug abuser.
If state law provides greater privacy protection than federal law, state law controls. New Mexico’s Children’s Mental Health and Developmental Disabilities Act places limitations on the disclosure, without consent, of behavioral health information that could be used to identify a child under the age of 18 as the patient. Further, information concerning a child who is receiving behavioral health services may not be released to “any other person, agency or governmental entity or placed in files or computerized data banks” accessible to persons who are not authorized to obtain this information. In addition, under Section 32A-6A-24(H) NMSA 1978, this information cannot be “re-released” without express consent. New Mexico’s Mental Health and Developmental Disabilities Code contains similar protections for adults.
In the federal court proceeding recently brought by eight of the 15 audited behavioral health providers, it appears that the HSD persuaded a federal court judge to allow it to: scan and digitize all of the patient records held by the behavioral health providers whose payments have been suspended; obtain a list of consumers who have either received treatment for alcohol or drug use or who have a diagnosis code that indicates alcohol or drug use from OptumHealth; and send the list of names of these consumers to document-imaging companies hired by the HSD. The stipulated order says that the HSD will transmit the list of names to the imaging companies “to ensure that the [patient] files are encrypted”. The order says that the patient files will be taken off-site to a secure location and converted to an electronic format. According to the order, it appears that the only information to be encrypted are the patient files of the consumers with drug or alcohol diagnoses. This presumably leaves names of other behavioral health patients and their files unencrypted and readable to anyone, should a laptop computer be stolen or lost.
Senator Morales recently received word that several thousand names of behavioral health consumers with drug or alcohol diagnoses were emailed, without encryption, to several persons who should not have received them by an imaging company hired by the HSD. The fact that this happened in the context of a federal lawsuit does not alter the medical privacy rights of patients under state or federal law. Under federal law, the HSD is supposed to notify the persons whose names have been improperly disclosed. If it has not already done so, we call upon the HSD to immediately: 1) notify the persons whose names have been improperly disclosed; 2) take steps to encrypt all behavioral health information (including patient names) that the HSD or any of its contractors handles; and 3) hire an independent auditor to verify that unencrypted behavioral health patient information has been cleared, purged or destroyed from all media and devices involved.