Access to Substance Abuse and Mental Health Data: Balancing Privacy with Treatment Efficacy

Posted by Sashi Segu | October 31, 2018 | Thought-Leadership

Mental health is big news in the NFL right now and Derek Carr of the Oakland Raiders is at its center. Carr allegedly cried on the sidelines during a recent game, causing a “fractured relationship” with his teammates who now lack confidence in his ability to lead the team (The Athletic). Sadly, Carr’s story is a microcosm of how mental health is viewed in America.

In my previous blog, Untreated Mental Illness and Its Consequences, I talked about the 4 steps (shown below) that employers can take to achieve positive effects by addressing mental health in the workplace (National Alliance of Healthcare Purchaser Coalitions brief).


As the Carr incident demonstrates, overcoming the negative stigmas associated with mental illness can be difficult. Are these perceived stigmas the reasons why knowing the impact of mental health and substance abuse on your population is not easy to discern? You may be asking yourself why evaluating mental health’s effects on your plan’s members can be so difficult?

It should be noted that protecting everyone’s privacy is an important goal for all Plan Sponsors. In light of this goal, Part 2 of HIPAA and other state regulations don’t allow plan sponsors to access and use substance abuse and mental health data without obtaining patient consent first. You can’t use these types of data like you use protected health information (PHI) data for treatment, payment, and plan operation functions. This hinders your ERISA imposed fiduciary duties to monitor the performance of your plans to ensure they are being run in the best interest of participants.

You should be concerned about this lack of access to mental health and/or substance abuse data. According to the IFEBP Workplace Wellness Trends 2017 Survey, depression/mental illness is the 7th leading condition driving employer healthcare costs.

Key Mental Illness Facts
(National Institute of Mental Health)

  • Number of American adults suffering from a mental health issue in 2016: 44.7 million (18.3%):
    • Adolescents aged 15-16 with any mental illness: 49.5%
    • Young adults aged 18-25: 22.1%
    • Adults aged 26-49: 21.1%
    • Adults aged 50+: 14.5%
  • Adults with mental illness who received treatment in previous year: 19.2 million.
Employers should be concerned about lack of access to mental health and/or substance abuse data. - Sashi Segu, Innovu Counsel

Mental Health Costs

Source: (American Psychiatry Association)

You’re Required to Provide Substance Abuse and Mental Health Services

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and ACA require qualified health plans to cover substance abuse and mental health as they do other medically recognized diseases like heart disease and diabetes. But that recognition is not happening, according to a 2017 Milliman study that focused on nonquantitative treatment limitations for:

  • Out-of-network utilization rates for inpatient and outpatient facility services and professional office visits; and
  • Reimbursement rates for office visits for in-network healthcare providers.

As mentioned earlier, ERISA requires you to ensure your plans are being run in the best interest of participants. But if you don’t have access to those types of data; how can you:

  • Know if you are fulfilling your fiduciary duties?
  • Assess mental health performance metrics and accountability?
  • Discover if mental health issues are driving up your medical expenses?

Creating a Framework

You must have access to your mental health data and integrate it with your medical and pharmacy data to uncover the real issues and cost drivers in your population. To get data transparency, you need to create a framework that respects individual privacy, while also ensuring the efficacy of substance abuse and mental health services.

A potentially successful framework should include the following:

  • Educating lawmakers (state and federal) about your need for data transparency to:
    • Fulfill your fiduciary duties
    • Improve member health by treating the whole person (physical and mental health in tandem)
    • Ensure patient privacy
    • Standardize performance measurements for substance abuse and mental health services.
You must have access to your mental health data and integrate it with your medical and pharmacy data to uncover the real issues and cost drivers in your population. – Sashi Segu, Innovu Counsel

While you may not be able to enact change unilaterally, working collectively with other employers and interested parties may bring about change that permits better access to substance abuse and/or mental health services and data. There is strength in numbers. Business groups on health, industry trade associations, chambers of commerce, and other employer-related coalitions can take up this charge. Become an advocate for mental health transparency so you can use integrated data to control costs, improve quality, and most of all, improve health.

Sashi Segu
About The Author

Sashi Segu

Sashi Segu, Counsel, has participated in cases and provided legal expertise on HIPAA, ERISA, privacy, compliance, and other healthcare-related fields. He is currently Legal Counsel for Innovu, a healthcare data analytics company in Pittsburgh, PA. Sashi oversees legal research, advises management and staff, and works with internal partners and outside legal counsel. He is also responsible for drafting and reviewing contracts and negotiating with outside parties.

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