April 1st, 2013

Proposed disclosure bill raises legal, practice questions

Part of a young person’s development involves separation from parents and becoming independent. A bill introduced to Congress late last year would disrupt that natural order and could deter the college age group from seeking psychological help, experts say.

Former Rep. Laura Richardson (D-CA) filed the legislation, (H.R. 6712) shortly before leaving office. “The Elgin Stafford Mental Illness Information Disclosure Act,” or “Elgin’s Law,” would require mental health professionals to inform parents if their children under age 26 are receiving treatment for mental illness. The disclosure rule would apply to a minor child, an uninsured adult under 26 or an adult under 26 who is a dependent of the parents’ health benefits coverage.

The disclosure would take place without the young person’s consent, with the bill’s narrative noting, “active, sympathetic and knowledgeable involvement of a parent or legal guardian is encouraged to the maximum extent practicable.”

“Elgin’s Law,” was referred to the House Committee on Energy and Commerce for study. Beyond saying that the issue is slated for review, numerous requests for status updates or comments from the office of Committee Chair Fred Upton (R-MI) and Subcommittee on Health Chair Joe Pitts (R-PA) went unanswered.

Psychologists who work with that age group, however, had plenty to say.

“There are already laws on the books that give mental health professionals the ability to do whatever it takes when there are dangerousness issues involved,” says Christine Frizzell Ed.D., director of the counseling center at University of Massachusetts Dartmouth. “It’s appropriate to contact parents or other designated contacts if they are hurting themselves or others. But this (law) wouldn’t add anything and would only discourage treatment.”

Frizzell adds, “Kids who suffer from substance abuse issues or are seeking meds or who suffer a sexual assault and are hiding it from parents would not get the help they need.”

Jeffrey Arnett, Ph.D., research professor of psychology at Clark University in Worcester, Mass. and author of “Emerging Adulthood: The Winding Road from the Late Teens through the Twenties,” emphasizes that psychology is difficult to apply in the legal arena and “somebody is always done an injustice,” when people are treated identically based only on chronological age.

“Ages 18 to 25 – emerging adulthood – is an in-between stage…not quite adulthood but not childhood or adolescence either. It’s tricky to make rules for that transitional period in life.” Noting that as a parent, he would want to know if his 23 or 24-year old child was being treated for mental illness, Arnett takes issue with the age-26 designation. “The age threshold for everything else is 18 except alcohol. They are adults under the law and can get married, take out loans…They are responsible under the law for breaking the law and yet they don’t have the right to privacy of mental health treatment?”

Kristine Bertini, Psy.D., senior psychologist at University of Southern Maine’s Health and Counseling Center, agrees that age 26 is “arbitrary,” and feels the bill has numerous flaws in its present form.

“Why disclose to parents and not a spouse or emergency contact partner? The parents may not be the primary relationship for some people. At that age, the task is to be independent and separate from parents. This (law) would be a deterrent to that separation and independence.”

Bertini says the bill’s definition of mental illness raises many questions. “Will it apply to schizophrenia and other conditions in DSM-5 or are adjustment reactions and other short term issues included?”

The bill in its present form also raises legal red flags, according to Atty. Milton L. Kerstein of Kerstein, Coren & Lichtenstein, LLP in Wellesley, Mass.

While insured versus uninsured individuals are not a protected class covered by discrimination laws, Kerstein says the regulation contradicts HIPAA’s current position regarding disclosure of medical information to parents about their non-minor children. It would impact existing laws held by some states governing the privacy of teenagers and some young adults in this realm.

Kerstein calls a section on “exceptions,” as “very vague and unhelpful.” The disclosure would not have to take place if “the involvement of the parent would be counter-productive,” to treatment, the legislation says.

“Psychologists deal with these issues now especially in custody disputes between separated or divorced parents. If implemented, this law would more than likely create additional uncertainty for the practitioner,” Kerstein says.

College counseling centers have a consistently high number of students seeking services, with Frizzell and Bertini saying young adults enroll with previously-diagnosed conditions, more severe mental illnesses and dual diagnoses. That population also faces unique challenges.

“Studies show it is a stressed out generation. Schooling is expensive and with an extremely problematic economy, kids are worried if they will even have futures,” says Frizzell.

Arnett feels the proposal has some merit, depending on the particular child-parent relationship. It could result in the young person receiving essential love and concern. “I know it would be a boost to getting the kind of support they need to heal,” he says. But that advantage would have to be weighed against the child’s desire to make his own decisions and not having his space compromised.

Adds Kerstein, “While the intent is noble, the issue requires far more analysis and then specificity in order to bring more clarity.”

By Susan Gonsalves

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