NDLI: Are Forensic Evaluations “Health Care” and Are They Regulated by HIPAA?

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Are Forensic Evaluations “Health Care” and Are They Regulated by HIPAA?

Content Provider	Springer Nature Link
Author	Borkosky, Bruce G. Pellett, Jon M. Thomas, Mark S.
Copyright Year	2013
Abstract	Forensic mental health providers (FMHPs) typically do not release records to the examinee. The Health Insurance Portability and Accountability Act (HIPAA) federal 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 argument (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 addition, it asserts that HIPAA applies solely to treatment services; 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 services provided by that provider are thence forward “covered.” 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 appears that the evidence strongly suggests that, for those forensic mental health practitioners who are covered entities, HIPAA does apply to forensic evaluations. The implication is that FMHPs potentially face various federal, state, and civil sanctions for refusing to permit patient access to records.
Starting Page	1
Ending Page	8
Page Count	8
File Format	PDF
ISSN	1938971X
Journal	Psychological Injury and Law
Volume Number	7
Issue Number	1
e-ISSN	19389728
Language	English
Publisher	Springer US
Publisher Date	2013-06-08
Publisher Place	Boston
Access Restriction	One Nation One Subscription (ONOS)
Subject Keyword	HIPAA Patient access rights Forensic evaluations Medical records Health care Law and Psychology Clinical Psychology Psychology
Content Type	Text
Resource Type	Article
Subject	Ecology Law Psychiatry and Mental Health

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