The Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to DoD, however within the law, there is a specific exception for the armed forces. This is found in Title 45 of the Code of Federal Regulations (CFR), section (§)164.512(k) and DoD 6025.18-R DoD Health Information Privacy Regulation.
Both of these regulations require that only the minimum amount of information be provided to satisfy the purpose of the request or disclosure. The requirement allows for clinical professional judgment to be used in disclosures. To further emphasize the military’s position of limited disclosure, DoD issued the DoD Instruction (DoDI) 6490.08 Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members in 2011 with the aim of providing additional guidance to health care providers about command notification requirements and ensuring the DoD “foster a culture of support in the provision of mental health care and voluntarily sought substance abuse education to military personnel in order to dispel the stigma of seeking mental health care and/or substance misuse education services.”
DoDI 6490.08 lists nine circumstances for which disclosure of information is required:
- 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 DoD Instruction 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. The service member is in the Personnel Reliability Program as described in DoD Instruction 5210.42, or is in a position that has been pre-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 safety 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 DoD Instruction 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 DoD Directive 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 medical treatment facility involved) at the O-6 or equivalent level or above or a commanding officer at the O-6 level or above.
For further information about the disclosure of protected health information, see the resources below.
- U.S. Department of Health and Human Services (HHS) Office for Civil Rights
- The Health Insurance Portability and Accountability Act of 1996
- Health Information Privacy Page
- HIPAA Administrative Simplification Regulation Text 45 CFR § 160, 162, and 164 (Unofficial Version, as amended through March 26, 2013)
- Defense Health Agency Privacy and Civil Liberties Office
Policies Related to Disclosure of Protected Health Information
- DoDI 6025.18 Privacy of Individually Identifiable Health Information in DoD Health Care Programs (2009)
- DoD 6025.18-R DoD Health Information Privacy Regulation (2003)
- DoDI 6490.04 Mental Health Evaluations of Members of the Military Services (2013)
- DoDI 6490.08 Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members (2011)