Avoiding Liability Bulletin – April 2014
NOTE: In the February 2014 issue of the AVOIDING LIABILITY BULLETIN, I raised many questions for the reader’s thought, research, and discussion with colleagues. The questions were on a variety of topics, arranged alphabetically. Some of those questions, with my answers, follow. The answers are brief and are not intended to be a thorough exploration of the topic. (In the March 2014 issue of the AVOIDING LIABILITY BULLETIN, I answered questions raised on the topics of barter, neglect, violence toward patient, and taking a zoo trip with patient.)
What agency of government investigates patient complaints for a violation of HIPAA’s Privacy Rule? Is it a complete defense to such a complaint that the practitioner is and was not a “covered entity?”
DISCUSSION: The Office for Civil Rights (OCR), part of the U.S. Department of Health and Human Services (HHS), is the governmental agency that receives and investigates patient complaints alleging violations of the Privacy Rule (part of the federal regulations promulgated by HHS to implement HIPAA). In order for OCR to acquire jurisdiction over an individual mental health practitioner, the practitioner would have to be a “covered entity.” I assume in this brief article that the reader knows whether or not he or she is a “covered entity.” This determination is critical because a covered entity (which may be a sole proprietor of a health care practice) would be governed by the Privacy Rule, while a practitioner who is not a covered entity will be governed by state laws and regulations.
Thus, when federal agents visit your practice or contact you to discuss a complaint alleging a violation of the patient’s confidentiality or privacy, if you are a not a covered entity (a/k/a covered provider), the “feds” should have no further involvement with you. The issue of whether or not you were, at the time of the alleged violation, a covered entity would of course be explored, and if it was determined that you were not a covered entity, this should operate as a complete defense to the complaint – at least with respect to the federal government’s intervention. The complainant would likely be referred to the state licensing authority to investigate the complaint involving privacy and confidentiality.
Consumer complaints involving the right of the patient to access records (e.g., the refusal by the practitioner to allow access or the limiting of full access) may also be the subject of scrutiny by OCR since the Privacy Rule addresses patient access to records. As with confidentiality and privacy complaints, the “feds” would not have jurisdiction if the practitioner was not a “covered provider/entity.”
ABOUT THE AUTHOR
"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.