New Justice Center Publications Provide Guidance to Practitioners and State Mental Health Commissioners

Two recent publications from the Council of State Governments Justice Center offer expert advice for solving problems at the interface of the mental health and criminal justice systems—systems that sometimes collaborate and sometimes collide. First, how can local mental health and criminal justice systems create effective programs when both federal and state privacy laws seem to erect insurmountable barriers to sharing information? Second, how can a state mental health commissioner prepare for and respond to a high-profile, tragic incident involving a person with serious mental illness?

The first publication, Information Sharing in Criminal Justice-Mental Health Collaborations, is designed to help jurisdictions comply with federal and state privacy laws. Sharing health and treatment information about people with mental illness or substance use disorders is essential to ensuring appropriate responses within the justice system. However, misperceptions about the privacy laws impede communications between mental health, law enforcement, court, and corrections personnel, and these perceived barriers may contribute to the overrepresentation of people with mental illness in jails and prisons.

The introduction to the 30-page guide describes the federal legal framework for sharing "protected health information." Understanding the framework is a crucial first step in designing and implementing effective collaborations. Federal laws shape what is permissible at the state and local levels, mainly via HIPAA (Health Insurance Portability and Accountability Act) and 42 CFR Part 2 (privacy regulations related to substance abuse treatment). Many practitioners believe that HIPAA limits information sharing in a far more restrictive way than what the actual regulatory language requires. The guide reminds practitioners that the original intent of the legislation was to facilitate insurance coverage through the development of an information system for electronic health records that ensured appropriate privacy and security.

The guide is organized into two parts. The first part focuses on each type of practitioner likely to be involved in criminal justice-mental health collaborations: behavioral health care, law enforcement, courts, jail and prison, and probation and parole. For each practitioner type, the guide addresses whether the individual is bound by HIPAA or 42 CFR Part 2. The circumstances under which an individual can provide protected health information and when he or she can receive it are described. Each section concludes with several scenario-based frequently asked questions for the practitioner, including many that are not directly covered by HIPAA regulations. Additional sections provide an overview of other types of entities that request or provide information ("business associates" and "qualified service organizations") and a review of an individual's right of access to his or her own health information.

The second part of the guide provides practical advice on working with the privacy laws. Information-sharing tools that jurisdictions typically develop to exchange information are described, such as a uniform authorization and consent form, which is used at various points in the criminal justice process—such as at jail booking or diversion program entry—to obtain an individual's permission to share information. At the system level, many jurisdictions employ manual processes or management information systems to routinely bring together criminal justice and behavioral health information, and the guide describes examples in several states and how they conform with privacy laws.

The second Justice Center publication, Responding to a High-Profile Tragic Incident Involving a Person With a Serious Mental Illness, is a toolkit for state mental health commissioners. Such incidents place commissioners, other behavioral health professionals, and emergency responders under public, media, legal, and legislative scrutiny. Commissioners, in particular, are called on to account for perceived failures in the public mental health system and to respond to proposed policies and legislative fixes intended to prevent such incidents.

"Although the publication was designed with mental health commissioners in mind, this is an invaluable resource for policy makers, anyone involved in the mental health system, and for law enforcement and other emergency responders to such tragedies," said Fred Osher, M.D., Justice Center director of health systems and services policy. "The toolkit underscores the benefit to working collaboratively with journalists; family, consumer, and victims' advocates; and experts in the field and first responders to ensure information is accurately and appropriately shared without undermining ongoing investigations."

The 88-page toolkit provides specific advice for three separate stages of critical incidents: before (preparing for a future incident), during, and after an incident. For each stage, practical steps for commissioners in four areas are listed: understand your role, understand your agency, understand your state, and understand crisis communications. For example, a commissioner's role during an incident is that of a "crisis leader," who activates the agency's existing crisis management team, consults with state legislators and community leaders, and communicates to the public usually through media outlets. The toolkit offers "backgrounders" and fact sheets, checklists and contact forms, and a list of online resources to help prepare for and manage such incidents and evaluate responses. A particular emphasis is placed on what research shows about the perceived link between mental illness and violence and how to communicate this knowledge.

Both publications are available on the Justice Center Web site at justicecenter.csg.org .