AVOIDING LIABILITY BLOG

HIPAA or No HIPAA – That Is the Question

April 2013

… For those of you who are sole practitioners or soon may become sole practitioners, are you a “covered entity” under HIPAA or not? Do you want to be a “covered entity” or not? Is there an advantage to you and your patients for you to be a covered entity? How much thought have you given to this subject? I haven’t thought about this subject for a while, but recently, I was surprised to learn that there are still some who believe that all licensed health care practitioners are covered by HIPAA and the rules/regulations implementing HIPAA. This, of course, has not been true from the beginning, and it is not true now. One can usually choose whether or not he or she wants to become a covered entity.

From a broader point of view, I would think that the less that state practitioners are governed by federal law, the better. Health care professions are typically regulated by state laws. Of course, if one is a covered entity under HIPAA, then he or she is bound by the regulations implementing HIPAA (for example, the “Privacy Rule”). If not covered by HIPAA, then the practitioner will be bound by state laws – which may or may not be in accord with the federal rules. Many states have amended a variety of state laws to be in accord with the HIPAA rules. Other states may be in the process of doing so, and there are some who believe that eventually, all health care providers will be bound by the HIPAA requirements.

Do you know the major differences between state law and HIPAA regulations regarding the issues of a) confidentiality of patient records and information, and b) patient access to their mental health records – that is, the right of the patient to inspect the records or to obtain a copy of the records?

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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