August 27, 2018
Author: Terry J. Dalke
As in general medical records, the purpose of recordkeeping in mental health and juvenile records is to give a chronological history of the case, to be able to meet the rules of evidence and use the records in court; to protect you from liability and to allow others to step in and make informed decisions about the case in your absence.
Documentation should be done when fresh in your memory at or near the time of the session, done consistently, with information obtained first-hand, with your impression at that time, outlining the existing mental, emotional and physical condition of the client. It should include your opinion, and all underlying facts or data which led you to this opinion. Ask yourself whether the information adds to the record. Include the purpose of the contact, topics which were discussed, information that is new, impressions which will allow you to independently remember the client, and when making inquiries, note the absence of information when that absence of information has import. As of this writing, the new health care legislation enacted in March, 2010, incorporates existing HIPAA requirements.
The “hierarchy of laws” for mental health clients and for minors works just as it does for normal medical records for adults. Federal laws take precedence for those persons and agencies they apply to. These laws are interpreted by federal regulations. Where they differ, federal laws trump state laws, unless the federal law says the state law controls if it is more protective. Specific laws guide us over general laws. State regulations interpret states laws. Agency policy comes last, but on a day to day basis clearly impacts the clinician. In interpreting these laws, we have both federal and state case law, at different levels of appeal.
Answers are not always as clear cut as you would presume. Laws may conflict with ethical rules within your profession. For example, there has been litigation regarding whether raw test data should be required to be released to a litigant. States have differed as to their stance, which may override the APA standard (however note that the APA ethics code requires compliance “consistent with the law”). AZ R-4-26-106(B) provides that raw data may be released to another psychologist or “only to the extent required by federal or Arizona law or court order compelling production. If the judge orders disclosure, you are covered.
HIPAA may not apply at all if evaluations are for the express purpose of enabling an expert to prepare a report for use in a civil, criminal, or administrative law proceeding.
In Arizona, we have two major cases, which alleged the state was not adequately meeting statutory guidelines in implementing mental health services. Understanding the issues outlined in these cases can guide a practitioner’s documentation in the record. Arnold v Sarn is a 1981 class action suit which alleged that the Department of Health Services and Maricopa County did not fund a comprehensive mental health system as required by state statute. The case was settled with a plan to implement the court’s findings, which covered the entire state. Modifications to the implementation plan were made in 1998, 2004 and 2006, most recently targeting service planning for development of independent living skills, housing support, vocational work supports and substance abuse services. The Jason K. settlement with the Arizona Department of Health Services extended findings to the treatment of juveniles. Jason K. focuses on 1) client engagement, 2) a strengths/ needs/ cultural considerations approach, 3) an individualized service plan, and 4) implementation, monitoring and modification of the case plan as needed.
Mental health and juvenile medical records practice, then, are touched by many laws. HIPAA requirements apply to those covered providers who do certain types of electronic disclosure. The Health Information Technology for Economic and Clinical Health Act “HITECH” Act enacted in 2010 was implemented to strengthen privacy and security protection of health information and to improve the workability and effectiveness of the HIPPA rules. A bill to extend HITECH to mental health, the HITECH Extension for Behavioral Health Services Act of 2011 (HR 5025/ S539) would extend financial incentives and grant programs to behavioral, mental health, and substance abuse professionals; licensed psychologists; social workers; psychiatric hospitals; behavioral and mental health clinics; and substance abuse treatment centers.
Federal mental health and substance abuse laws and regulations apply to certain information in the record, as do certain federal communicable disease and reproductive rights laws. Social Security, Veteran’s Administration, OBRA and other federal statutes each have compliance requirements. Arizona Title 36, Department of Health regulations, Developmental Disabilities, Child Protective Services, home health care providers, medical power of attorney and heath care surrogates, communicable disease, advocacy enabling, vulnerable adult, insurance and other statutory sections also have compliance requirements.
For the practitioner, it is important to understand the threads between these laws. In general, medical and mental health information is presumed to be privileged and confidential unless there is a written exception, and the more protective rule generally trumps. Such general rules, however, are written in a way to work in a practical manner. Medical professionals can talk to friends or family who are present unless the patient objects. No signed authorization is necessary.
In general, an adult with capacity is the one who controls release of records or other confidentiality. An adult with capacity can grant a third party such access. “Having capacity” means the client has sufficient understanding to make or communicate responsible decisions concerning his or her person. An adult who lacks capacity may have someone with the power to make particular legal decisions for him or her. This may be a guardian, conservator, power of attorney, health care surrogate, a Title 36 provider acting according to an outpatient treatment plan, or judge. A conservator, financial power of attorney or representative payee may have limited powers to gather only such information needed to process insurance claims or make other financial arrangements on behalf of a client.
Consent for treatment should include methods for release of the records, the client’s right to participate in treatment decisions and in periodic reviews of his or her treatment plan. The expiration date should not exceed 12 months.
Each treatment plan should be signed and dated, at least annually, with a date set for review.
Special consideration may be given to victim rights. Professionals dealing with crime victims may wish to consult counsel regarding legal actions to protect victim’s privacy regarding mental health records, including letting victims know they have rights with regard to disclosure of information requested in criminal prosecutions, assistance with filing motions to quash subpoenas and requesting “in camera” reviews by a judge to determine relevancy of records. Such actions may reduce additional trauma suffered by victims who report sex crimes and other crimes.
When a child’s rights are at issue, a guardian ad litem or specially trained advocate can be appointed to ensure the child’s privacy rights are adequately protected. Minors do not have the ability to control the release of records or other confidentiality, unless they are emancipated. Release to third parties is controlled by the custodial party of the minor. A minor’s parents make decisions if both parents remain married or share custody. When there is a sole custody arrangement, that parent makes decisions about treatment and third party releases, but absent a court order indicating otherwise, the other parent will still be entitled to review information. A.R.S. § 25- 403.06 states
A. Unless otherwise provided by court order or law,
on reasonable request both parents are entitled to
have equal access to documents and other
information concerning the child’s education and
physical, mental, moral and emotional health
including medical, school, police, court and other
records directly from the custodian of the records
or from the other parent.
B. A person who does not comply with a reasonable
request shall reimburse the requesting parent for
court costs and attorney fees incurred by that
parent to force compliance with this section.
C. A parent who attempts to restrict the release of
documents or information by the custodian without
a prior court order is subject to appropriate
In recent years, violations of rules regarding release or refusal to release information to parents of minors has been the subject of frequent disciplinary action. If both parents have decision-making authority over treatment for the minor, have both parents sign consent for treatment. Request and keep a copy of any custody agreement or order detailing limitations on parental authority in your file. A therapist needs to inform a parent seeking therapy for a minor that the other parent will have access to that information absent a court order to the contrary. When a parent requests information, release needs to be made in a timely manner. In the event the provider believes that release of information would seriously endanger the child, seek a court order clarifying your ability to deny release. Decision-making authority may also be vested in a third party, such as Child Protective Services or other party through a dependency action, by a Title 14 guardian, by a Title 8 guardian, by a third party given specific authority in a delinquency action, an in loco parentis custodian, a person with a child care power of attorney, or by other court order.
Requests for release of information often come from parties in a court case involving an adult or minor. It is important for the counselor or agency to understand when records may be released to such a party. You have already covered issues involving subpoenas and wording on general medical releases. A release with regard to mental health treatment should specify that it is to cover mental health issues, should state the purpose for the release, and any limitations on such a release. Such releases should be limited to only the information necessary to accomplish the purpose stated in the release. It is important that the party signing the release understand any potential secondary release of the documents, and that they have the right to limit the scope of the disclosure. No releases is required for sharing within an agency and with labs associated with the agency. Whether a release is needed for sharing between agencies actively involved in evaluating or treating the client follows the general rules dealt with in your prior session, depending on the nature of the relationship between the agencies, and the specific type of information being disclosed.
Attorneys who represent the client are allowed to get any information the person would otherwise be entitled to. An attorney’s identity and representation can be confirmed by a Letter of Representation signed by the patient, or by a court order showing appointment of counsel on behalf of the person. A guardian ad litem for a person may or may not have full authority to receive information, depending on the extent of his or her court order. A CASA may have authority under Arizona law but not under federal law, absent a court order which complies with federal requirements.
You have covered the issue of notes versus records. Psychotherapy notes, the detailed notes which relate specific content of conversations with the client, are commonly used in mental health cases. They are not considered to be part of the clinical record, and would not be disclosed with a routine release. It is important to note, however, that these notes may be “discoverable” in a legal action. Psychologists are required to release raw test data upon the request of a client pursuant to A.R.S. 12-2293.
Breach of confidentiality through improper release of records can result in actions against a provider, similar to other types of liability suits such as malpractice, torts, breach of contract, intentional infliction of emotional distress, violation of statutory client rights and other actions. Liability can be limited by documentation, consultation, following agency protocol, liability insurance, carefully and specifically drafted releases and ensuring and documenting informed consent for both treatment and release issues. Internal audits of record-keeping practices should be done as a routine matter. Keep client records on the premises in a secure location.
Those who work independently may wish to develop a method for providing oversight for one another, with proper disclosure and agreement of clients. Clients need to be informed when other professionals or staff from outside of the practice or agency will be viewing records. Whether inside an agency, or outside of the agency, professionals may be liable for both their own acts and omissions as well as for their acts or omissions as supervisors. In one Arizona case, a non-agency supervisor of a private therapist was sanctioned for reviewing confidential client files without written authorization and for failure to properly notify the supervisee of the need to have written consent for each client, for failure to keep appropriate records about the supervision, and for failure to document supervisory hours.
General exceptions to confidentiality have been discussed with regard to records. Arizona has specific statutes related to future criminal activity, child abuse and neglect, vulnerable adult and elder abuse, and developmentally disabled adult abuse. The Arizona statutes limit liability for good faith disclosure in these areas. Where a choice needs to be made between liability for failure to properly execute a duty to warn and a duty to maintain confidentiality, common sense should be used.
The clinician should be extremely careful about documentation in the record in a “duty to warn” situation. Documentation should include word for word the explicit threat which was communicated, including what was stated with regard to imminence of action, of the seriousness of the threat, of how the harm intended was that of serious physical harm or death, who the identified or identifiable victim or victims might be, and how the patient had the apparent intent and ability to carry out such threat. The clinician should also document all attempts to have the person contained, as through a Title 36 evaluation order and why this was unsuccessful, all attempts to identify victims where there identity was unclear, all communication or attempts at communication of the threat, notification to law enforcement in the vicinity where the patient or any potential victim resides, as well as documenting any other precautions that a reasonable and prudent mental health provider would take under the circumstances. In the event there is a threat but the clinician does not believe it rises to the level of seeking mental health evaluation or duty to warn disclosure, care should be taken to detail how that assessment was made.
With regard to child abuse, HIPAA defers to state law. In Arizona, any physician, behavioral health professional, nurse, psychologist, counselor or social worker who, in the course of treatment, develops a reasonable belief that there has been abuse or neglect of a child, has a duty to report the information to Child Protective Services.
Abuse means 1) inflicting physical injury or 2) serious emotional damage. Physical injury includes sexual abuse (sexual contact with minor 15 or more without consent or with minor under 15 contact with breast only), sexual contact with a minor (sexual intercourse or oral sex, even with consent, with anyone under 18), sexual assault (sexual intercourse or oral sex without consent), molestation (sexual contact with minor under 15, not including contact with the breast), sexual exploitation of a minor (filming and recording minor in exploitive exhibition or other sexual conduct), incest, and child prostitution. Serious emotional damage requires evidence of severe anxiety, depression, withdrawal or untoward aggressive behavior which has been diagnosed by a physician or psychologist and which is caused by the acts or failure to protect of the caretaker of the child.
Neglect means the inability or unwillingness of a caretaker to provide the child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes substantial risk of harm to the child’s health or welfare. This does not include a parent who is unable to care for a child’s disability or chronic illness, including mental illness, due to the unavailability of reasonable services.
Reports made under abuse-reporting laws provide immunity for any disclosure, unless a showing is made that the provider acted with malice or was accused of abuse him- or herself. In general, practitioner-client confidences, both as they relate to the competency of the witness and to the exclusion of confidential communications, are subject to disclosure in civil or criminal cases in which a child’s neglect, dependency, abuse or abandonment is at issue. Confidentiality and privilege become more complicated for joint counseling and for records containing information on a variety of client issues. It is important that there is clarity with regard to sharing during joint sessions if individual sessions also occur, and with regard to how records will be kept in the event of a release of information by a single party. Depending on the nature of a release, information may need to be separated or redacted for dually diagnosed clients where rules differ.
\"Consent\" means voluntary informed consent. Consent is voluntary if not given as the result of coercion or undue influence. Consent is informed if the person giving the consent has been informed of and comprehends the nature, purpose, consequences, risks of the release of information and has been informed and comprehends that withholding or withdrawal of consent will not prejudice the future provision of care and services to the client. It is exercised by the patient with capacity, or by the custodian of a minor. As applied to a signed release, the person should understand the potential “risks” of disclosure of information particular to the purpose and limitations of the release being signed. In releases signed by adults involved in dependency cases, (whether or not Child Protective Services is involved), best practice for a release form would include an admonition that information being released will be re-disclosed to all parties in the dependency action pursuant to law (information goes to each parent of a child in the case, counsel for all parties, and any other party given intervention status).
Real life: Disciplinary actions may be taken against those who released records when they shouldn’t have, or didn’t release them when they should have. These issues involve how records are physically kept, improper disposal, improper oversight, legibility, whether documentation is adequate, whether informed written consent has been obtained, whether separate consents have been obtained from family members, taking consent from the wrong person, taking the record home, insufficient back-up of computerized notes, failure to make a report to C.P.S., not having the correct legal authority for decision-making after the death of the legal custodian, and other violations.
Those new in private practice should seek consultation in high conflict divorce/custody cases re: consent and confidentiality. In these cases one should document the nature of the therapist’s role, who were the clients, handling of conflicts, identifying any step-parent or other party as a client of the therapy. When questions arise about best practice regarding recordkeeping, releases, and disclosure for mental health clients or juveniles, consult your risk management department, and/or legal counsel.