The Catholic University of America

Summary of District of Columbia Laws

Miscellaneous Laws                                                         

CUA Compliance Partners     
Dir. Counseling Center

 

 

"D.C. Mental Health Information Act of 1978"   DC Code Section §7-1201.01 et seq.                                         

The Law: The Act makes it unlawful for a mental health professional, facility, or its employees to disclose or permit the disclosure of mental health information unless  authorization has been obtained, or a specific exception in the law applies. The Act addresses such issues as personal notes, general rules governing disclosures and the prescribed form of authorization, etc.

Emergency Exception:  See below for exact statutory text. See also  Vitaly Tarasoff v. Regents of the University of California, 551 P.2d 334; 131 Cal. Rptr. 14 (1976).

Cross Reference: See the federal Confidentiality of Patient Records, 42 U.S.C. § 290dd-2 which sets forth the confidentiality requirements for patient records in connection with substance abuse treatment programs.

Recordkeeping: When a disclosure occurs, a notation must be entered and maintained with the patient's record of mental health information. The notation must include the date of disclosure, to whom disclosed, and a description of the contents of the disclosure. In all cases except for disclosure pursuant to the emergency provision, the disclosure must be accompanied by a statement to the effect that: "The unauthorized disclosure of mental health information violates the provision of the District of Columbia Mental Health Information Act of 1978. Disclosures may only be made pursuant to a valid authorization by the client as provided in title III or IV of that Act. The Act provides for civil damages and criminal penalties for violations."

Form of written authorization of disclosure

The disclosure must:
(1) Specify the nature of the information to be disclosed, the type of persons authorized to disclose such information, to whom the information may be disclosed and the specific purposes for which the information may be used both at the time of the disclosure and at any time in the future;
(2) Advise the client of his right to inspect his record of mental health information;
(3) State that the consent is subject to revocation, except where an authorization is executed in connection with a client's obtaining a life or noncancellable or guaranteed renewable health insurance policy, in which case the authorization shall be specific as to its expiration date which shall not exceed 2 years from the date of the policy; or where an authorization is executed in connection with the client's obtaining any other form of health insurance in which case the authorization shall be specific as to its expiration date which shall not exceed 1 year from the date of the policy;
(4) Be signed by the person or persons authorizing the disclosure; and
(5) Contain the date upon which the authorization was signed and the date on which the authorization will expire, which shall be no longer than 365 days from the date of authorization.

In addition, a copy of the authorization shall be provided to the client and the person authorizing the disclosure; accompany all such disclosures; and be included in the client's record of mental health information.

Limitations on client right to access: Personal notes are not subject to the patient right to access rules. Personal notes are defined in the code as mental health information regarding a client which is limited to mental health information disclosed to the mental health professional in confidence by other persons on condition that such information not be disclosed to the client or other persons; and the mental health professional's speculations. In addition, DC Code 7-1202.06 gives the mental health professional the authority to limit authorized disclosures when: 

(1) Such mental health professional reasonably believes that such refusal or  limitation on disclosure is necessary to protect the client from a substantial  risk of imminent psychological impairment or to protect the client or another  individual from a substantial risk of imminent and serious physical injury;  and

(2) The mental health professional notifies the person or persons who authorized  the disclosure, in writing, of:  (A) the refusal or limitation on disclosure;  (B) the reasons for such refusal or limitation;  and (C) the remedies under this  chapter;  provided, further, that, in an insurance transaction, the mental  health professional shall inform the insurer that the authorized disclosure was  refused or limited.

Any refusal or limitation on disclosure shall be noted in the client's record of mental health information including, but not limited to, the names of the mental health professionals involved, the date of the refusal or limitation, the requested disclosure and the actual disclosure, if any.

Further requirements apply if this provision is utilized by the mental health professional (notification, right to review, etc.) and they can be found in D.C. Code § 7-1202.06. Limited disclosure to third party payor rules are set forth in DC Code 7-1202.07.

Mental health information may be disclosed to other individuals employed at the individual mental health facility when and to the extent necessary to facilitate the delivery of professional services to the client.  Mental health information may be disclosed by participating providers to other participating providers when and to the extent necessary to facilitate the delivery of mental health services and mental health supports to the consumer.

Disclosure on an Emergency Basis

The statute (DC Code Section 7-1203.03) sets forth disclosures on an emergency basis. The text of the law, current as of Nov. 2011, is provided below.

(a) To the extent the disclosure of mental health information is not otherwise authorized by this chapter, mental health information may be disclosed, on an emergency basis, to one or more of the following if the mental health professional reasonably believes that such disclosure is necessary to initiate or seek emergency hospitalization of the client under s 21-521 or to otherwise protect the client or another individual from a substantial risk of imminent and serious physical injury:

 (1) The client's spouse, parent, or legal guardian;

 (2) A duly accredited officer or agent of the District of Columbia in charge of
 public health;

 (3) The Department of Mental Health;

 (4) A provider as that term is defined in s 7-1131.02(27);

 (5) The District of Columbia Pretrial Services Agency;

 (6) The Court Services and Offender Supervision Agency;

 (7) A court exercising jurisdiction over the client as a result of a pending
 criminal proceeding;

 (8) Emergency medical personnel;

 (9) An officer authorized to make arrests in the District of Columbia;  or

 (10) An intended victim.

(a-1) Any disclosure of mental health information under this section shall be limited to the minimum necessary to initiate or seek emergency hospitalization of the client under s 21-521 or to otherwise protect the client or another individual from a substantial risk of imminent and serious physical injury.

(b) Mental health information disclosed to the Metropolitan Police Department pursuant to this section shall be maintained separately and shall not be made a part of any permanent police record. Such mental health information shall not be further disclosed except as a court-related disclosure pursuant to subchapter IV
of this chapter. If no judicial action relating to the disclosure under this section is pending at the expiration of the statute of limitations governing the nature of the judicial action, the mental health information shall be destroyed. If a judicial action relating to the disclosure under this section is pending at the expiration of the statute of limitations, the mental health information shall be destroyed at the termination of the judicial action.

(c) Mental health information contained in a certification of incapacity, pursuant to s 21-2204, may be disclosed to initiate a proceeding pursuant to Chapter 20 of Title 21.
 

Questions and Answers

 

Q: Can the counseling center provide counseling to minors without parental/guardian consent?

A: Yes, you can provide counseling to the minors under DC Code § 7-1231.14 and they can consent on their own; however, without parental consent you have to limit it to 90 days and then either make a new determination, terminate, or get parental/guardian consent.

D.C. Code § 7-1231.14:

(b)(1) A provider may deliver outpatient mental health services and mental health supports other than medication to a minor who is voluntarily seeking such services without parental or guardian consent if the provider determines that:

(A) The minor is knowingly and voluntarily seeking the services; and
(B) Provision of the services is clinically indicated for the minor's well-being.
(2) Mental health services and mental health supports provided to a minor without the consent of a parent or guardian pursuant to subsection (b)(1) of this section shall be limited to a period of 90 days. At the end of the 90-day period, the provider shall either:
(A) Make a new determination pursuant to subsection (b)(1) of this section that provision of services to the minor without parental or guardian consent is voluntarily sought by the minor and continues to be clinically indicated;
(B) Terminate the services; or
(C) With the consent of the minor, notify the parent(s) or guardian to obtain consent to provide further outpatient services.
(3) The provider shall fully document the reasons for its determinations regarding delivery of mental health services to minors, and shall include such documentation in the minor's clinical record.
(4) A provider may conduct an initial interview of a minor who appears to be voluntarily seeking outpatient mental health services and mental health supports without parental or guardian consent or involvement in order to determine whether the criteria of subsection (b)(1) of this section are satisfied.

Q: May a minor's parents gain access to the minor's records?

A: They may do so, but it requires joint consent of the minor and the parent/guardian. See D.C. Code § 17.1202.05 which reads: (b) When a client is under the age of 18, but beyond the age of 14, disclosures which require authorization may only be authorized by the joint written authorization of the client and the client's parent or legal guardian.

 

Resources

The Academy and the Public Peril: Mental Illness, Student Rampage, and Institutional Duty, by Helen DeHaven. 37 Journal of College and University Law, 267 2011 (available from NACUA) This article includes a reexamination of the Tarasoff exception.

 

 

updated 11-15-11 by mlo to change number of days to 365 from 60 for authorization forms expiration; clarified emergency disclosure by including statutory text