HIPAA doesn't apply to members of the military?
COMMAND ACCESS TO SOLDIERS PROTECTED HEALTH INFORMATION (HIPAA)
• DoD 6025.18-R, DoD Health Information Privacy Regulation, (January 24, 2003)
• DoD Instruction 6490.08, Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members (August
• DoD Instruction 6490.1, Mental Health Evaluations of Members of the Armed Forces (August 28, 1997)
• DoD Instruction 6490.10, Continuity of Behavioral Health Care for Transferring and Transitioning Service Members (March 26, 2012)
• Army Regulation 40-66, Medical Record Administration and Healthcare Documentation
• Field Manual 6-22.5, Combat and Operational Stress Control Manual for Leaders and Soldiers (March 18, 2009)
• MEDCOM Regulation 40-38, Commander-Directed Mental Health Evaluations (June 1, 1999)
• OTSG/MEDCOM Policy Memorandum 10-042, Release of Protected Health Information (PHI) to Unit Command Officials, 30 June 2010
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires everyone in the Military Health System to safeguard and
keep confidential the health information on patients. A patient's health care information is confidential and will not be released to anyone
without either an authorization from the patient or an exception to HIPAA. However, HIPAA provides a limited exception for access to Protected
Health Information (PHI) for command officials when the patient is a Soldier.
COMMAND ACCESS TO PROTECTED HEALTH INFORMATION (PHI) — "THE MILITARY EXCEPTION."
A. Communication is Key
The key to success with HIPAA and medical information-related issues is good communication between the command, the health care
provider, the military treatment facility (if applicable), and the servicing judge advocates.
1) Military Health Care Providers and Military Treatment Facilities (MTFs)
Commanders and their designees have a specific exception to receive a Soldier's PHI in certain situations to assure the proper execution of
the military mission. Health care providers may provide information to the command pursuant to this exception without the Soldier's consent. If
a commander believes that he or she needs to know about a Soldier's PHI, the commander should immediately contact the health care
provider. Commanders must understand, however, that this exception is limited. Commanders do not have unrestricted access to a Soldier's
PHI. MTFs and health care providers will provide timely and accurate information to support a commander's decision-making pertaining to a
Soldier's health risk, medical fitness, and readiness. To access a Soldier's PHI, a commander (or the commander's proper designee) must
need the Soldier's PHI to carry out an activity under the authority of the commander. This exception does NOT apply to Family members,
retirees, or civilians. It applies only to Soldiers.
2) Civilian Medical Facilities
When a Soldier is or was treated at a civilian hospital or by a civilian health care provider, DoD 6025.18-R, paragraph C22.214.171.124 states that a
commander may request the Soldier's PHI if the commander needs the PHI for an official purpose. HIPAA, however, leaves it to the civilian
hospital or provider's discretion to determine if they will disclose the relevant PHI, as disclosure is generally permissible, but not required.
Commanders having difficulty getting PHI from civilian medical facilities or civilian providers should seek the assistance of the MTF's Patient
Administration Division (PAD) and their servicing judge advocate.
B. The Minimum Necessary Rule
The HIPAA Privacy Rule requires covered entities, such as MIFs and Unit Surgeons, to take reasonable steps to limit the use or disclosure of,
and requests for, PHI to the minimum necessary to accomplish the intended purpose. In other words, in most cases, commanders who request
PHI pursuant to the military exception will typically not receive all of the Soldier's PHI, as in most cases, not all information is necessary to
accomplish the intended purpose. Disclosure may include the diagnosis; a description of the treatment prescribed or planned; impact on duty
or mission; recommended duty restrictions; the prognosis; applicable duty limitations; and implications for the safety of self or others.
C. Common Uses of the "The Military Exception" to HIPAA
1) Determine a Soldier's Fitness for Duty.
A commander may obtain PHI to determine a Soldier's fitness for duty, including, but not limited to, the member's compliance with standards
and activities carried out under the Army Weight Control Program (AR 600-9), Physical Evaluation for Retention, Retirement, or Separation
(AR 635-40), or AR 40-501 (Standards of Medical Fitness).
2) Determine a Soldier's fitness to perform a particular mission
A commander may obtain PHI to determine a Soldier's fitness to perform a particular mission, assignment, order, or duty, including compliance
with any actions required as a precondition to performance of such mission, assignment, order, or duty. Common examples are profiles and
notice that a Soldier is taking a particular medication that interferes with the performance of duty, such as driving or carrying a weapon.
3) Report on casualties in any military operation.
4) Carry out any other activity necessary to the proper execution of the mission of the Armed Forces. Common examples include:
• to coordinate sick call, routine and emergency care, quarters, hospitalization, and care from civilian providers IAW AR 40-66 and AR 40-400;
• To report Command Directed Mental Health Evaluations IAW MEDCOM Regulation 40-38;
• To initiate Line of Duty (LOD) determinations and to assist investigating officers IAW AR 600¬8-4, LOD Procedures and Investigations;
• Most medical appointment reminders concerning Soldiers may be disclosed to Command Authorities (but see Section E below);
• To report a Soldier's dental classification IAW AR 40-3;
• To carry out Soldier Readiness Program (SRP) and mobilization processing requirements lAW DA Pam 600-8-101;
• To provide initial and follow-up reports for the Army Family Advocacy Program IAW AR 608¬18;
• To complete records for the Exceptional Family Member Program IAW AR 608-75 and MEDCOM Circular 40-4;
• IAW AR 15-6 investigations (but not including Quality Assurance information);
• To review and report Human Immunodeficiency Virus (HIV) IAW AR 600-110;
• To carry out any other activity necessary to the proper execution of the mission of the Army.
D. Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members (DoDI 6490.08, August 17,
1) General Information
There is new guidance related to the release of information pertaining to a Service member's involvement in mental health care and
substance abuse education (distinguished from substance abuse treatment).
Healthcare providers follow a presumption that they are not to notify a Service member's commander when the service member obtains
mental health care or substance abuse education services, unless this presumption is overcome by one of the following notification standards.
2) Notification Standards
Command notification by healthcare providers will not be required for Service member self and medical referrals for mental health care or
substance misuse education unless one of the reasons listed below apply. Healthcare providers shall notify the commander concerned when
a Service member meets the criteria for one of the following mental health and/or substance misuse conditions or related circumstances:
• Harm to Self. The provider believes there is a serious risk of self-harm by the Service member either as a result of the condition itself or
medical treatment of the condition.
• Harm to Others. The provider believes there is a serious risk of harm to others either as a result of the condition itself or medical treatment
of the condition. This includes any disclosures concerning child abuse or domestic violence consistent with DoDI 6400.06.
• Harm to Mission. The provider believes there is a serious risk of harm to a specific military operational mission. Such serious risk may
include disorders that significantly impact impulsivity, insight, reliability, and judgment.
• Special Personnel, Service Members in the Personnel Reliability Program as described in DoDI 5210.42, or is in a position that has been
identified by Service regulation or the command as having mission responsibilities of such potential sensitivity or urgency that normal
notification standards would significantly risk mission accomplishment.
• Inpatient Care. The Service member is admitted or discharged from any inpatient mental health or substance abuse treatment facility as
these are considered critical points in treatment and support nationally recognized patient standards.
• Acute Medical Conditions Interfering With Duty. The Service member is experiencing an acute mental health condition or is engaged in an
acute medical treatment regimen that impairs the Service member's ability to perform assigned duties.
• Substance Abuse Treatment Program. The Service member has entered into, or is being discharged from, a formal outpatient or inpatient
treatment program consistent with DoDI 1010.6 for the treatment of substance abuse or dependence.
• Command-Directed Mental Health Evaluation. The mental health services are obtained as a result of a command-directed mental health
evaluation consistent with DoDD 6490.1.
• Other Special Circumstances. The notification is based on other special circumstances in which proper execution of the military mission
outweighs the interests served by avoiding notification, as determined on a case-by-case basis by a health care provider (or other authorized
official of the MTF involved) at the 0-6 or equivalent level or above or a commanding officer at the 0-6 level or above.
4. BEHAVIORAL HEALTH EVALUATIONS
While a commander may inquire into the general nature of a Soldier's status, if a commander has a question about a Soldier's mental ability
to perform his or her duty, the commander should immediately initiate a command-directed mental status evaluation. Chapter 38, Behavior
Health Evaluations, discusses this situation in depth. Commanders will be provided a copy of a command-directed mental health evaluation.
If a Soldier initiates the mental health evaluation (self-referral), medical conditions that do not affect the Soldier's fitness for duty or fitness to
perform a particular mission will not be provided to the unit. Should the Soldier need to be hospitalized or prescribed medications that limit his
or her ability to perform his or her duty, such as to carry a weapon, the healthcare provider has an affirmative duty to notify the unit of this
change or limitation of duty status. As discussed above, MTFs and military healthcare providers will proactively inform command authorities of
conditions that impair a Soldier's performance of duty. Examples include: to avert a serious and imminent threat to health or safety of a
person, such as suicide or homicide; if the Soldier's medical condition could impair his or her ability to perform a specific mission; or if the
Soldier's injury indicates a safety problem or battlefield trend.
5. MECHANICS OF A REQUEST FOR PHI
A. General Information
It is common for unit commanders to orally ask a health provider about the general status of a Soldier. A commander or his or her proper
designee can typically get information on a Soldier's general health status, adherence to scheduled appointments, profile status, and medical
readiness requirements over the phone after the commander's identity is authenticated. Commanders may also place requests in writing.
These requests should clearly state the purpose for which specific medical information is sought.
B. Medical Records
Requests for medical records should be in writing, using a DA Form 4254, to the MTF's Patient Administrative Division. The servicing Judge
Advocate can assist with such requests.
C. Authorized Designees
If anyone other than the commander is to use the PHI, the commander must designate the authorized command official in writing.
Commanders must use such delegations judiciously, and instruct each authorized designee about the importance of not further releasing the
information without appropriate justification.
Contact your servicing Judge Advocate immediately if there is a disagreement regarding the release of PHI. The servicing Staff Judge
Advocate serves as an honest broker between commanders and the military treatment providers in such situations.
6. WARRIOR TRANSITION UNITS
Due to the unique nature of a Warrior Transition Unit, WTU commanders typically have access to Soldier PHI without an authorization. WTU
Commanders should contact their servicing Judge Advocate about HIPAA-related questions.
7. ADDITIONAL COMMANDER RESPONSIBILITIES
A. Safeguarding PHI
Once medical information is released from the MTF to a commander, it is no longer covered by HIPAA. Commanders, however, have an
important responsibility to safeguard the information received and limit any further disclosure in accordance with the Privacy Act and other
applicable rules and regulations. Commanders have the same duty as healthcare providers to safeguard PHI. Information provided shall be
restricted to personnel with a specific need to know; that is, access to the information must be necessary for the conduct of official duties.
Unauthorized release of PHI potentially increases stigma and creates barriers to care. Commanders with questions about the further use of
PHI should contact their servicing judge advocate.
B. Reduce the Stigma of Mental Health Treatment
It is DoD policy that the DoD shall foster a culture of support in the provisions of mental health care and voluntarily sought substance abuse
and education to military personnel in order to dispel the stigma of seeking mental health care and/or substance misuse education services.
Commanders must reduce stigma through positive regard for those who seek mental health assistance to restore and maintain their mission
readiness, just as they would view someone seeking treatment for any other medical issue.
C. Transferring and Transitioning Service Members
In conjunction with health care providers, commanders shall notify gaining commanders when adherence to an ongoing treatment plan is
deemed necessary to ensure mission readiness and/or safety. in all situations, to include Soldiers transitioning out of the military service,
commanders and health care providers should ensure that Service members who require continued behavioral health care or medical
addiction treatment or follow-up are properly transferred to prevent a break in care or treatment.
8. OTHER HIPAA EXCEPTIONS
There are numerous other exceptions to HIPAA that are not covered in this section. In addition, laws, regulations, and guidance may
frequently change. The Commander should contact their servicing judge advocate with any medical information-related questions or concerns.http://www.armylegalguide.com/soldier-rights/hipaa.html