Thinking Outside the Silos: Information Sharing in Medical–Legal Partnerships

Abstract

Medical–legal partnerships (MLPs) allow providers to address patients’ health-harming legal needs through partnerships with lawyers. MLPs are most successful in addressing the complex needs of vulnerable populations when clinicians, social workers, and other care team members regularly communicate with the MLP lawyer. Privacy laws and professional rules of conduct governing patient/client confidentiality, however, potentially hinder this exchange of patient-client information. MLP attorneys may be reluctant to share relevant information about a client with the medical partner for fear that doing so would breach client confidentiality or result in an ill-advised waiver of attorney–client privilege. Similarly, privacy concerns may lead providers to limit MLP attorneys’ access to patients’ medical information.

Drawing on the real-world experiences of MLP professionals, this article explores whether legal and ethical obligations impede the sharing of patient-client information between MLPs’ medical and legal partners. Our research indicates that at present patient/client confidentiality rules generally do not pose a significant barrier to doing so. However, current legal and professional standards may frustrate emerging advanced care coordination models that pair MLPs with care teams that comprehensively address a broad range of social, economic, and behavioral health needs. We therefore recommend continued monitoring and discussion of the issue.

Notes

1 U.S. Dep’t of Just., Civ. Legal Aid 101, https://perma.cc/UQN8-Q467 (last updated Oct. 21, 2014).

2 See Caitlyn Weiss and Jonathan Pyle, Addressing the Social Determinants of Health by Placing Legal Advocates in Community Health Centers, Soc. Innovations J. (19 Oct. 2016), https://perma.cc/9UER-N35R.

3 See U.S. Dep’t of Just., supra note 1. MLP attorneys may assist with family law and estate planning matters such as divorce, guardianship, and powers of attorney or provide legal aid to individuals with immigration and creditor/debtor issues. See id. See also Directory of Medical–Legal Partnership Programs, Am. Bar Ass’n., https://perma.cc/5YKE-AECQ.

4 See Bharath Krishnamurthy et al., What We Know and Need to Know about Medical–Legal Partnership, 67 S.C. L. Rev. 378, 379-80 (2016) (presenting a table with potential MLP interventions, such as “[s]ecure housing subsidies, protect against utility shut-off” and “[a]ppeal denial of food stamps, health insurance”).

5 See Jessica Mantel and Leah Fowler, A Qualitative Study of the Promises and Perils of Medical–Legal Partnerships, 12 Northeastern U. L. Rev. 1, 10 (2020) (discussing the benefits of integrated MLP models).

6 See id. at 30.

7 Jessica Mantel and Renee Knake, Legal and Ethical Impediments to Data Sharing and Integration among Medical Legal Partnership Participants, 27 Annals of Health L. 183 (2018).

8 See id. at 198-99 (“[A]n MLP lawyer must weigh the potential benefits to the client of the disclosure of information to the medical partner against the potential risks of this information being used in future litigation. … MLP lawyers may fear the potential adverse consequences of waiving privilege, and out of an abundance of caution, may choose not to share information with the medical partner”).

9 See id. at 194-97 (explaining that providers may be reluctant to share patient information with the MLP attorney out of concerns that doing so will violate federal privacy laws or result in liability for the provider).

10 This research was done with approval from the University of Houston Institutional Review Board.

11 See Mantel and Fowler, supra note 5.

12 See id. at 4.

13 See id. at 10.

14 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-91, 110 Stat. (1936).

15 45 C.F.R. § 164.508 (2018).

16 Am. Med. Ass’n, Code of Medical Ethics Opinion 3.2.1, https://perma.cc/LVQ2-MUHZ; Louis Snyder Sulmasy et al., American College of Physicians Ethics Manual, Ann. Intern. Med. Jan. 2019, at S5, S5 (“The physician should not release a patient’s personal medical information (often termed a ‘privileged communication’) without that patient’s consent”); Natl. Ass’n of Soc. Workers, Ethical Standards, 1.07 Privacy and Confidentiality, https://perma.cc/manage/create?folder=88638; and Am. Nursing Ass’n., Code of Ethics for Nurses with Interpretative Statements, Provision 3.1, Protection of the Rights of Privacy and Confidentiality, https://perma.cc/J6HT-6G9V.

17 All of the individuals we interviewed indicated that their MLP’s medical partner obtains written or verbal authorization prior to sharing individually identifiable information with the legal partner. See Interviews with Medical–Legal Partners (on file with authors).

18 See Interviews with Medical–Legal Partners (on file with authors).

19 Another reason offered by an interviewee included a culture of information sharing among medical professionals. One attorney observed, “I think what happens is I’m an attorney entering a medical world, and so [the doctors] are used to talking openly and comfortably with each other about these issues. But then I will enter the room, and I don’t know, sometimes they seem not as concerned as maybe they should be.” Interview with Attorney, Medical–Legal Partner (on file with authors).

20 Interviewees highlighted several benefits of granting MLP attorneys direct access to medical records through the EHR. As we explain in a separate article:

Attorneys granted access to the EHR can download or print needed medical records, eliminating the costs and administrative burdens associated with formal records request. In contrast, attorneys who must formally request a client’s medical records must wait days if not weeks for the records, which delays progress in the client’s case. Attorneys with access to the EHR also can personally verify facts relevant to a client’s case, thereby avoiding having to reach out to the medical partner’s clinicians and staff for confirmation. For example, one attorney commented that when the state threatened action against her client based on their understanding of the relevant facts, she was able to quickly verify that the state’s information was incorrect and issue a prompt response to the state. Another MLP attorney commented that information she accesses through the EHR helps her better understand her client’s legal needs. As she explained, “The more you know the better job we can do.” A second attorney similarly emphasized the value of having access to all information in the EHR, noting that those records may include relevant documents such as a patient’s individualized education plan. Others echoed these statements, calling access to the EHR a “game changer” and “like gold.”

Mantel and Fowler, supra note 5 at 23 (citations omitted).

21 See id. at 24. (“Despite the potential benefits of granting MLP attorneys access to the EHR, not all medical partners are comfortable doing so”). Cf. Mantel and Knake, supra note 7 at 194 (explaining how privacy concerns can impede the medical partner sharing patient information with the legal partner).

22 Interview with Physician, Medical–Legal Partner (on file with authors).

23 See Mantel and Fowler, supra note 5 at 23. Interestingly, though, interviewees did not cite providers’ malpractice concerns as impeding MLP attorney’s access to patient medical records, although such concerns can be a barrier to establishing an MLP. See id. at 40.

24 See id. at 24. The type of access granted varied. Some MLP attorneys can only view the order referring a patient to the MLP, whereas others can read and print patients’ electronic records. More rarely, attorneys have read and write access to the EHR, and one interviewee described that she regularly enters legal chart notes into the EHR.

25 See Model Rule of Pro. Conduct R.1.6 (A.B.A. 2017) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [certain narrow exceptions]”). A version of the American Bar Association (ABA) Model Rule of Professional Conduct 1.6 has been adopted in all U.S. jurisdictions. See Mantel and Knake, supra note 7, at 198.

26 See generally Model Rule of Pro. Conduct r. 1.6 cmt. (Am. Bar Ass’n 2017).

27 See Uniform Rules of Evidence Act 5, 84 §§ 502(a) and (b) (2005) (protecting the disclosure of information exchanged between clients and attorneys “for the purpose of facilitating the rendition of … legal services” and stating that the attorney–client privilege applies only to attorney–client communications made with the expectation of confidentiality).

28 See Fed. R. Evid. 502(a).

29 See also Mantel and Knake, supra note 7, at 198. Both the obligation to maintain confidentiality and the attorney–client privilege promote effective legal representation by encouraging open and honest communication between attorneys and their clients. Model Rules of Pro. Conduct r. 1.6 cmts. (Am. Bar Ass’n 2017). (“The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.”)

30 Thomas E. Spahn, Attorney–Client Privilege: Ensuring Confidentiality, Practical Law Practice Note 5-502-9406.

31 See Mantel and Knake, supra note 7, at 198.

32 See Mantel and Fowler, supra note 5 (describing the type of basic information that MLP attorneys reported disclosing to the medical partner).

33 See id. at 30.

34 See id. at 31.

35 See id.

36 One MLP attorney interviewee observed: “I think at the beginning of our partnership with [one of our medical partners] where it was truly a new partnership for them and a new concept and they had some turnover in management of that, it almost felt like we had this period of needing to prove that we were actually doing work. They wanted to know details.” Interview with Attorney, Medical–Legal Partner (on file with authors).

37 As explained by a member of a medical partner’s MLP administrative team,

[The attorney] sends an email back to the referring person, and they have a check sheet that they mark whichever ones are correct. So, it might be we talked with your patient and they declined or we talked with your patient and this was not a legal issue. We talked with your patient and we’re taking the case. So, there are checkboxes. So, they check which one and they can add any note. … [A reason for this] is it’s also training them [i.e., the medical partner staff and clinicians] and helping them understand what kinds of cases and what barriers and just keeping that communication open so that we can continue to get additional referrals from the referral partners, whether it be our clinicians or the clinicians at the FQHC.

Interviews with Medical–Legal Partners (on file with authors).

38 See Mantel and Fowler, supra note 5 at 29.

39 See Interviews with Medical–Legal Partners (on file with authors).

40 See Interviews with Medical–Legal Partners (on file with authors). As explained by one MLP attorney we interviewed:

[F]or a patient who’s specifically consented to the release, I will share information that’s helpful to the care team. … But I always keep it as brief as possible. … You know typically again we’re talking about an update on public benefits eligibility or an update on where things stand in an eviction case. So stuff that’s not particularly sensitive.

Interview with Attorney, Medical–Legal Partner (on file with authors).

41 See Mantel and Fowler, supra note 5 at 41.

42 For example, one MLP attorney stated as follows:

So, I am mindful of [the attorney–client privilege] when I share information, and I try very hard to not get into the weeds or the facts on anything. … But in terms of it waiving any confidentiality, it’s not a concern of mine. It’s also just, I mean, I am very practical. … My co-counsel are oftentimes state agencies who just don’t care to do any discovery at all and just want to make me go away, so it is really hard for me to envision a scenario where opposing counsel would try to use waiver of privilege in a case against me. I just can’t foresee an issue. Really, I’m mindful of it, but I don’t worry about it, if that makes sense.

Interview with Attorney, Medical–Legal Partner (on file with authors). Another MLP attorney we interviewed similarly commented that “waiver of privilege, I haven’t really been particularly concerned about that” given the “types of matters we’re dealing with. …” Interview with Attorney, Medical–Legal Partner (on file with authors).

43 Interview with Hospital General Counsel, Medical Partner (on file with authors).

44 One MLP attorney stated as follows: “We want to waive as little privilege as possible, so unless it’s absolutely necessary, we try to keep our client’s information confidential. So far, there hasn’t been a real big need to go back to the provider and have that exchange.” Interview with MLP Attorney (on file with the authors).

45 For example, a patient’s housing or financial insecurity might lead the physician to prescribe less expensive insulin or other drugs, or knowing that the patient’s mold issue has been remediated may cause a physician to explore other triggers for a patient’s continued respiratory problems. See Interviews with Physicians, Medical–Legal Partner (on file with authors).

46 As explained by the MLP attorney:

[The therapist] is getting in a session, I’m really stressed about blank and blank, and whatever the legal problem is [the patient] is sharing the play-by-play as part of a therapy session. … Sometimes the therapist will say, “Hey, this came up in session. The client described this and I just want to understand so that I can help with expectations. Or I’m not sure I understand the timeline.” … [The therapist is] just trying to figure out is the recitation that the patient just gave, is that actually what’s going on?

Interview with Attorney, Medical–Legal Partner (on file with authors).

47 Interview with Attorney, Medical–Legal Partner (on file with authors) (stating that if she learned about a child’s recent behavior change from the child’s school, this could be useful information to share with the medical partner).

48 See supra note 42 and accompanying text.

49 See Interview with Attorney, Medical–Legal Partner (on file with authors) (“We’ve encouraged clients to get back in touch with their provider if they’re struggling with their mental health issues or substance abuse issues, but we wouldn’t be the ones to do that”); Interview with Attorney, Medical–Legal Partner (on file with authors) (stating that if she learned about a child’s recent behavior change from the child’s school, she would “encourage [her] client to report that back to their child’s doctor”).

50 See generally Michelle M. Doty et al., Primary Care Physicians’ Role in Coordinating Medical and Health-Related Social Needs in Eleven Countries, 39 Health Affairs 115, 118 (2020) (the majority of primary care providers in the United States reported that they do not frequently coordinate patient care with social services or other community providers).

51 Sarah Klein and Martha Hostetter, In Focus: Integrating Behavioral Health and Primary Care, The Commw. Fund (Aug. 28, 2014) https://perma.cc/3DMB-SPQS. (“[B]ehavioral health care is mostly separated from the primary care system—a practice that the Institute of Medicine concluded nearly 20 years ago was leading to inferior care”); Kara Zivin et al., Behavioral Health and the Comprehensive Primary Care (CPC) Initiative: Findings from the 2014 CPC Behavioral Health Survey, 17 BMC Health Services Res. 612, 613 (noting that despite students demonstrating the effectiveness of behavioral health integration, widespread adoption of the practice has not occurred); Idalia Mass et al., Collaboration between NCQA Patient-Centered Medical Homes and Specialty Behavioral Health and Medical Services, 2 Translational Behav. Med. 332, 334-35 (2012) (finding that very few patient-centered medical homes collaborate with behavioral health providers to the same degree as they do for medical conditions).

52 See Nancy Kathleen Sugg and Thomas Inui, Primary Care Physicians’ Response to Domestic Violence: Opening Pandora’s Box, 267 JAMA 3159-60 (1992) (discussing reasons for clinician reluctance to screen for domestic violence, including sense of powerlessness to “fix” the problem and ineffectiveness in their ability to intervene).

53 As one MLP attorney we interviewed commented, “[Care team] meetings are a really good source of information that can help me identify any needs that might have been missed. …” Another MLP attorney similarly commented that she attends care team meetings so she can “identify legal issues that the team’s not necessarily identifying. …” Interviews with Attorneys, Medical–Legal Partner (on file with authors).

54 Interviews with Attorneys, Medical–Legal Partner (on file with authors).

55 See supra Part I (explaining HIPAA’s requirements). Although some legal commentators have argued that MLPs’ activities should be considered “treatment” or “health care operations” under HIPAA and that patient authorization therefore is not required, this interpretation remains untested. See Jane Hyatt Thorpe et al., Information Sharing in Medical–Legal Partnerships: Foundational Concepts and Resources, Nat’l Ctr. for Medical–Legal Partnership (Aug. 2017), http://medical-legalpartnership.org/privacy-brief (discussing “treatment” and “healthcare operations” disclosures by MLPs).

56 See Interviews with Attorneys, Medical–Legal Partner (on file with authors).

57 See Interviews with Attorneys, Medical–Legal Partner (on file with authors).

58 See Interviews with Attorneys, Medical–Legal Partner (on file with authors).

59 See Interviews with Attorneys and Patient Navigator, Medical–Legal Partner (on file with authors).

60 See Interviews with Attorneys, Medical–Legal Partner (on file with authors).

61 See, e.g., United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961); Gerrits v. Brannen Banks of Florida, Inc., 138 F.R.D. 574, 577 (D. Col. 1991) (“Although the attorney–client privilege may sometimes extend to communications to accountants or other experts providing assistance to the attorney, the communication must be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only professional service, or if the advice sought is the professional’s rather than the lawyer’s no privilege exists.”)

62 One MLP attorney we interviewed specifically remarked that the medical partner’s clinicians and staff serve as members of the legal team. See Interview with Attorney, Medical–Legal Partner (on file with authors). (“As much as we’re part of the health care team, health care folks are part of the legal team as well.”)

63 See, e.g., Baxter Travenol Labs., Inc. v. Abbott Labs., No. 84 C 5103, 1987 WL 12919, at *12 (N.D. Ill. June 19, 1987) (requiring that non-attorney be under “the direct supervision of the attorney” in order to be an agent of the attorney).

64 See, e.g., Dublin Eye Assocs., P.C. v. Massachusetts Mut. Life Ins. Co., No. 5:11-CV-128-KSF, 2013 WL 653541, at *9 (E.D. Ky. Feb. 21, 2013) (no privilege because third party’s role was not considered indispensable); Banco do Brasil, S.A. v. 275 Washington St. Corp., No. CIV.A. 09-11343-NMG, 2012 WL 1247756, at *4 (D. Mass. Apr. 12, 2012) (third party was not “necessary” to the attorney).

65 Heather A. Wydra, Keeping Secrets within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly, 62 Fordham L. Rev. 1517, 1542-43 (1994).

66 SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005).

67 See id.

68 The Restatement (Third) of the Law Governing Lawyers §70, comment f (Am. Law. Inst. 2000).

69 Cf. Texas Rule of Evidence sec. 503(a)(2) (defining a “client representative” to include a “person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client”).

70 See Mary Caitlin St. Clair et al., Incorporating Home Visits in a Primary Care Residency Clinic: The Patient and Physician Experience, 6 J. Patient-Centered Research and Reviews no. 3, 203, 203 (2019) (citing a study reporting that home visits are on the rise and have doubled from 1996 to 2016); Sarah Klein and Martha Hostetter, In Focus: Making House Calls to Improve Care of Patients with Advanced Illness, The Commw. Fund, https://perma.cc/JVZ9-CT55. These upward trends in home-based care may continue in light of payment models looking to incentivize treatment in the least expensive setting. See Lauran Hardin and Diana J. Mason, Bringing It Home: The Shift in Where Health Care is Delivered, 322 JAMA no. 6, 493, 494 (2019).

71 See St. Clair et al., supra note 70 (stating that home visits “improve quality of and access to care” and give providers “a better understanding of a patient’s environmental and social determinants of health”).

72 See Josh Lee et al., Addressing the Social Determinants of Health for Medicare and Medicaid Enrollees: Leading Strategies for Health Plans, deloitte insights, Feb. 27, 2019, at 5-6 (discussing how home visits may be the most effective screening method for identifying patients’ social needs).

73 See Klein and Hostetter, supra note 51, at 1.

74 See generally Thomas E. Spahn, A Practitioner’s Summary Guide to the Attorney–Client Privilege and the Work Product Doctrine, Am. Law Inst. Continuing Legal Educ. (2013) at 86 (explaining that as a general rule, the presence of a third-party during an attorney–client communication signifies that that there was no expectation of confidentiality). See also Morgan v. City of Federal Way, 213 P.3d 596, 601 (Wash. 2009) (the attorney–client privilege can be waived “when the communication is made in the presence of third persons on the theory that such circumstances are inconsistent with the notion the communication was ever intended to be confidential”).

75 Cf. Mantel and Fowler, supra note 5 (explaining that “[t]rusted care team members can play a crucial role in helping patients overcome their fears or wariness about attorneys and the legal process …” and that MLPs often have “greater success connecting patients to legal services when they build on the medical partner’s existing processes and patient’s trust in the provider”).

76 See Interview with Attorney, Medical–Legal Partner (on file with authors).

77 See supra Part I.

78 See id.

79 See Parts I and III.A.

80 See id.

81 See supra Part II.A.

82 See Interviews with Medical–Legal Partners (on file with authors).