Supporting continuing care and jail diversion for behavioral health patients. by Pat Farr


I presented this resolution to my fellow members of the National Association of Counties (NACo) Health Steering Committee.  It was supported unanimously (with slight amendment) and will be considered to be part of NACo’s federal policy.

My vantage point as I proposed a resolution amending Code of Federal Regulations #42

Proposed Resolution to Support Interagency Coordination to Assist “High Utilizers”

Issue: Interagency coordination to assist “high utilizers”

Proposed Policy:

NACo supports an amendment to 42 Code of Federal Regulations (CFR) Part 2 privacy provisions to explicitly allow information sharing between behavioral health and law enforcement in order to best serve individuals with substance issues.

Background: There is a need to support the development of protocols and systems among law enforcement, mental health, substance abuse, housing, corrections, and emergency medical service operations to provide coordinated assistance to high utilizers. A high utilizer: (a) manifests obvious signs of substance abuse, mental illness, or has been diagnosed by a qualified mental health professional as having a mental illness; and (b) consumes a significantly disproportionate quantity of public resources, such as emergency, housing, judicial, corrections, and law enforcement services.

The privacy provisions in 42 CFR were motivated by the understanding that stigma and fear of prosecution might dissuade persons with substance use disorders from seeking treatment.  42 CFR laws protect substance abusers’ rights and, in cases where it is more stringent, overrule HIPAA regulations.

HIPAA laws were passed to protect personal health information from being disclosed electronically on an unsecured site and without consent.  As a result, confidentiality is two-fold:  1) all information identifying a person as a substance abuser is confidential and may not be released without a consent by the client or legal guardian (42 CFR, Part 2), and 2) all personal health information, including demographic data, that is created by the provider and relates to the person’s medical or mental health, services provided, and payment falls under the protection of HIPAA and may not be released without consent by the client or legal guardian.

In most cases, addiction treatment providers fall under the more stringent laws of 42 CFR, Part 2, but there is still confusion about the two sets of laws that define who and what is to be protected. Under 42 CFR, when a person is identified as a substance abuser no information, even confirmation of the person being in treatment, may be released without a written authorization by the client or guardian. In contrast, the HIPAA privacy rule is balanced so that it permits the disclosure of health information needed for patient care and other important purposes (i.e., coordination of care, consultation between providers and referrals).

To develop and support multidisciplinary teams that coordinate, implement, and administer community-based crisis responses and long-term plans for high utilizers, a uniform set of privacy rules for the proper dissemination of information between agencies needs to exist. Information sharing is essential to the coordination of care across service providers. The confusion caused by the differences between HIPAA and 42 CFR often result in reduced information sharing and coordination, even when it is permissible.

Fiscal/Urban/Rural Impact: Individuals with mental illnesses are overrepresented at every stage of the criminal justice process.  In response, many jurisdictions have developed a range of policy and programmatic responses that depend on collaboration among the criminal justice, mental health, and substance abuse treatment systems. A critical component of this cross-system collaboration is information sharing, particularly information about the health and treatment of people with mental illnesses who are the focus of these responses. At the program level, this information can be used to identify target populations for interventions, evaluate program effectiveness, and determine whether programs are cost-efficient. However, legal and technical barriers, both real and perceived, often prevent a smooth exchange of information among these systems and impede identifying individuals with mental illness or substance abuse issues and developing effective plans for appropriate diversion, treatment, and transition from a criminal justice setting back into the community.


Sponsor(s): Pat Farr, Chairman, Board of County Commissioners, Lane County, Ore.




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