“An Alphabet of Reminders, Information…”

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Avoiding Liability Bulletin – July 2012

A . Always remember to renew your license and your malpractice insurance policy. Practicing without a license or malpractice insurance, even if the result of a clerical error, can have significant adverse consequences when an unexpected event occurs during that period of time when there has been a lapse. Don’t rely upon the state or the malpractice carrier to remind you – calendar the key dates and avoid stress and possible problems, including personal liability.

B . Barter may not be specifically prohibited by law, but some ethical codes and standards seem to frown on barter or provide conditions around barter that limit its practicality or appropriateness. This is so because some barter arrangements may create conflicts and lead to exploitation or distortion of the professional relationship. If you venture into barter, be sure to review the ethical standards applicable to your practice and with any law that may be applicable. See item “Y” below.

C . Confidentiality is the cornerstone of psychotherapy, but it is not without exceptions – some of which are mandatory (e.g., child abuse and elder abuse reporting) and some of which are permissible (e.g., when a patient is a danger to self or to others or when communicating with other licensed health care providers or facilities, depending upon state law). Remember, the fact of the relationship may be considered to be confidential – so be careful about acknowledging that someone is your client. Also remember to get a valid written authorization (in most circumstances and when required) signed by the patient before releasing confidential patient information to third parties.

D . Domestic violence occurring in a home where a child resides may constitute child abuse when the child observes the abuse. In some states, and depending upon the circumstances, domestic violence may constitute child abuse if it occurs in a home where the child resides – whether or not it is witnessed by the child. For example, if a parent is high on meth and attacks the other parent with a knife – this may constitute child abuse – even if the child is sleeping and unharmed. Check this out in your state.

E . Emotional abuse of a child may be reportable as child abuse, depending upon state law and the circumstances involved. There may be a difference between non-severe emotional abuse and severe emotional abuse in regard to whether a report is permissible or required. This can be a tricky area of the law, but reporting emotional abuse, if allowed, may be an important option for the mandated reporter who encounters situations where the child is at risk, but there is no physical abuse or neglect warranting a report.

F . Financial abuse of an elder constitutes a mandatory report in most states. Be sure you know the definition of an “elder” before reporting. There are some nuances in this area of the law ( as there are in many areas of the law!). For example, in California an elder is someone who is 65 or older residing in California. Thus, if a patient in California were to tell his therapist that he physically assaulted his 70 year old uncle in (and who resides in) Texas, this would not be reportable in California. The practitioner in California is of course not bound by Texas’ mandatory reporting laws. Thus, the communication is confidential.

G. Guilty pleas in a criminal case may jeopardize you license, as may a plea of “no contest” (nolo contendere). While no therapist or counselor contemplates being convicted of a crime, the reality is that many are – whether it is for driving under the influence of alcohol or drugs, possession of a controlled substance, insurance fraud, petty or grand theft, or a crime categorized as domestic violence. Before pleading guilty or no contest, consider fighting the case where appropriate (such as when you believe you are innocent or where your lawyer believes that the evidence of guilt is weak). Obtain good representation early.

H . HIPAA, through its implementing regulations regarding parental access to the treatment records of minor patients, defers to state law concerning the rights of parents to inspect or obtain copies of the mental health records of minor patients. In California, the law is written broadly – allowing therapists and counselors wide latitude in denying access to parents and providing protection if the angry parent sues or complains, or threatens such action. What is the law in your state? Can you protect the records from discovery by the unreasonably “snoopy” parent?

I . Immunity from liability does not mean that a therapist or counselor cannot be sued by a patient. It means that if sued, the immunity statute can be raised as a defense, usually in a motion for summary judgment, and the case can be dismissed at an early stage of the proceedings – assuming that the judge finds that the facts and circumstances fall squarely within the dictates of the immunity statute. Immunity is usually granted to mandated reporters of child abuse or elder abuse. In some states that immunity is absolute and unconditional. In other states, the immunity is available only if the therapist or counselor acts in good faith.

J . Joint legal custody is a concept that is usually important in determining such things as which parent can authorize treatment of a minor, which parent can sign an authorization form to release information pertaining to the minor patient, and perhaps, which parent can have access (inspect or copy) to a child’s mental health records. Joint legal custody generally means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.

K. Keep good records – not only with respect to treatment, but also with respect to your discussions and consultations with others that are intended to help you make the right clinical or legal decisions. Do not neglect to keep good records relating to your responsibilities to keep your practice compliant. In other words, calendar the expiration of your license and your professional liability insurance policy. Keep good records regarding the continuing education courses or workshops that you attend. Remember, you are allowed to exceed the minimum mandatory CE requirements!

L . Leaving an agency can create problems for the therapist or counselor who decides to “take patients” with him or her. Not doing things correctly and ethically can cause conflicts between the departing therapist and the owner of the business. Sometimes, these conflicts can put the patient in the middle of the dispute – something that should be assiduously avoided. In some cases, there are contractual provisions that attempt to govern the situation when someone leaves an agency – some of which may be unenforceable. Remember, no one “owns” the patient and the patient should be free to see the practitioner of his or her choice.

M . Minors are entitled to certain rights with respect to obtaining their own treatment – without parental consent. They may also have rights with respect to inspecting their records, obtaining copies of the records, preventing parents from having access to the records, and signing authorization forms. Each state likely handles these matters somewhat differently. In California, minors are given broad rights – they can generally sign authorization forms if twelve or over, they can generally authorize treatment if twelve or over, and they generally have the right to inspect or copy their own records if twelve or over.

N . Notice of Privacy Practices – Under HIPAA, mental health practitioners are required to provide their patients with this form – which must contain information specified in federal regulations (The Privacy Rule). This is required of those who are “covered providers.” One of the disclosures that must be made, and one that was patterned in significant part after California law, is that confidential patient information may be shared, without the patient’s written authorization, with other health care providers for purposes of diagnosis or treatment of the patient. Is that the law in your state for those who are not HIPAA covered providers?

O. Online therapy may provide opportunities for practitioners, and may also present certain difficulties. One considerable risk of online therapy involves being accused of practicing without a license when the practitioner is in one state and the patient or client is in another state. Generally, licensing boards will take the position that the practitioner needs to be licensed in the state where the patient resides. Advertising or referring to psychotherapy or mental health counseling as “coaching” is not a good idea. Be careful!

P . Privilege (whether called “psychotherapist –patient privilege” or a similar name) refers to the right of the patient to prevent his or her therapist or counselor from testifying in a legal proceeding and to prevent the treatment records from being introduced into evidence in a legal proceeding. The holder of the privilege is generally the patient, but a psychotherapist would be the one who initially asserts the privilege when the patient is not around and the therapist is served with a subpoena for records. Understanding privilege is essential to lawfully and appropriately resisting (unless the patient and his or her attorney waive the privilege) disclosure in the face of a subpoena.

Q . Questionable billing practices can get the practitioner into big trouble. It is not okay to bill insurers for sessions not actually held, even if the practitioner has a policy where patients are informed that they are responsible for the fee if there is an unexcused “no-show.” Of course, if the bill clearly indicates that the patient did not show and that no services were rendered, a bill could be submitted to the insurer but would likely not be reimbursed. Some practitioners have found themselves in trouble for billing (in their own names) for services rendered by intern employees – full disclosure was not made on the bill. Insurance fraud is a serious offense with many adverse consequences.

R . Reparative therapy, which is sometimes referred to as conversion therapy or reorientation therapy, is the subject of landmark legislation in California. Sponsors of the legislation are seeking to ban reparative therapy for minors, whether or not there is parental consent. The bill provides that any “sexual orientation change efforts” (that term is defined in the bill) attempted on a patient under eighteen years of age shall be considered unprofessional conduct and shall subject the practitioner to discipline by the licensing board. The bill (SB 1172 – Lieu) has passed the Senate and is soon to be heard on the Assembly floor. It appears likely that the bill will reach the Governor’s desk.

S . Service of a subpoena upon a therapist or counselor should not trigger fear – especially if the practitioner understands the laws related to the psychotherapist –patient privilege. While the law of each state may differ with respect to how a subpoena is to be complied with, contested, or resisted by a psychotherapist, it is important to understand that the practitioner will usually want to ascertain whether the patient and the patient’s attorney will be claiming or asserting the privilege, or whether the privilege is being waived. It is also important to make sure that the patient and the patient’s attorney are in agreement with each other.

T . Termination of therapy should generally be thought of as a process. A sudden termination by the practitioner could amount to an abandonment, which would jeopardize the license of a practitioner who acts too quickly. For example, terminating a long-term client by leaving a telephone message could be considered tantamount to an abandonment, or gross negligence. Of course, each case is different and sometimes there are extenuating circumstances.

U . Unethical dual relationships must be avoided, but what about other dual relationships? Depending upon state law and applicable ethical standards, not all dual relationships are necessarily unethical. While engaging in a dual relationship may not be wise in many circumstances, some ethical standards state that not all dual relationships are unethical, and that some cannot be avoided. The key in such circumstances is to make sure that there is no exploitation of the patient and that the practitioner’s judgment is not impaired.

V . Violating confidentiality, whether intentionally or negligently, can result in a civil lawsuit for damages, disciplinary action by the licensing authority, and in rare cases (in some states), criminal prosecution. It is critical that practitioners understand the exceptions to confidentiality – those that are mandatory and those that are permissive.

W . Waiver of the psychotherapist-patient privilege can occur by operation of law or by a signed or express waiver of the privilege by the patient. An example of an express waiver would be when a patient and the patient’s attorney inform the practitioner that the patient is waiving the privilege. An example of a waiver of the privilege by operation of law is when the patient has communicated the otherwise confidential information to a friend or other third party. Another example of a waiver by operation of law is when the patient has put his or her mental or emotional condition into issue in the legal proceeding.

X , Y, and Z – forgive my reaching, but …

X . X- ray therapy is outside the scope of practice/license of psychotherapists and counselors. While this is obvious, there are some less obvious services that raise scope of license questions. I have talked with some therapists who have made suggestions or recommendations to patients about taking (or not taking) certain medications or dietary supplements. I have also talked with mental health practitioners who have used massage, even in a limited way, during the course of treatment. I remember one case where the therapist rubbed or massaged the patient’s shoulders in order to relieve pain. Remember – there are limits to what your license allows – know them well.

Y . Yard-work and gardening, to be performed by a patient at the practitioner’s home in exchange for professional services being billed at $100 per hour, and “paid for” at the rate of $20 per hour, is arguably an example of exploitation and an unethical dual relationship. The stark contrast is apparent, and exploitation by the practitioner is easily argued by the later- disgruntled patient. The patient could even be considered to be in a separate contractual/business relationship with the practitioner to perform personal services. And wait until the practitioner wants to complain about the quality of the patient’s work or decides to terminate therapy!

Z. Zzzzz – do not ever fall asleep while performing professional services!

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Richard Leslie

"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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