Record Keeping – How Much? What content?

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Avoiding Liability Bulletin – January 2016

How much detail, and what kind of content, should be in your treatment records? This is a question that many have asked over the decades, and the answer is neither simple nor singular – and that is probably a good thing. Records are kept for the benefit of the client/patient and for the benefit of the practitioner. It must be remembered that practitioners holding different licensures see a wide variety of people who appear with a wide array of problems and issues. A variety of services may be offered, ranging from the diagnosis and treatment of serious mental illness, to couples counseling, group counseling on a wide variety of issues, and non-medically-based personal growth and development services. Some practitioners work within a health facility or other business entity that may require certain entries into the records or that established policies be followed.

As I have written here before (see archives), copious notes/treatment records may provide “fodder” for cross-examination of the practitioner in the event that there was litigation that reached the deposition or trial stage. Viewed differently, copious notes/treatment records might provide the treating practitioner with a good defense in the event of a complaint, claim, or lawsuit. Too little content might suggest or be argued as inadequate treatment and might hinder the defense of the practitioner in the event that there is litigation or an enforcement action. Of course, records that accurately reflect appropriate and competent treatment would likely be useful in one’s defense. Practitioners must include in the records any information that is required by law, regulation, or by applicable ethical standards, and they may want to include information that is recommended or encouraged.

If insurance reimbursement is involved, thought must be given to what may be required by the insurer in order to justify continued payment or reimbursement for services rendered. A patient might be upset with a therapist whose inadequate records do not allow for continued reimbursement. In the unlikely event of a complaint from the patient against the treating practitioner, it should be understood that a licensing board will likely be obtaining and reviewing the records. Thought must also be given to the desires of the patient with regard to privacy. Although the patient does not dictate or determine what the treatment records should look like, due regard for the patient’s desires may be heeded in some circumstances. When major decisions or changes are made during the course of treatment, these junctures should be reflected in the records and should be well documented. Support (e.g., consultation obtained, research done, rationale used) for these changes or decisions should also be reflected in the records.

It is important to recognize that mental health practice is both an art and a science, and in my view, the importance of the art portion of counseling or therapy should not be underestimated. It has long been my view that mental health practitioners should be given broad discretion with regard to the method and nature of treatment and how that treatment is reflected in their records. The regulatory board for LMFTs and LCSWs in California once considered proposing regulations that would have specified aspects of professional services rendered that had to be reflected in patient records. The proposal was met with strong opposition from the professions. Rather than go down the slippery slope of the government specifying the content of records, legislation was successfully pursued that gave practitioners wide latitude with respect to the content of treatment records. The standard enacted simply requires practitioners to keep that amount of records that is consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.

For those practitioners who are “covered entities” under HIPAA, it is important to understand the differences under the Privacy Rule between the term “psychotherapy notes” and the more generalized notions of psychotherapy or counseling treatment records. Issues dealing with the practitioner’s denial of patient access to psychotherapy or counseling treatment records, and to the denial of access to “psychotherapy notes,” or the need for a signed authorization before release of “psychotherapy notes” to a health insurer, are affected by these terms. The Privacy Rule defines “psychotherapy notes” as notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical (includes mental health) record.

The term “psychotherapy notes” excludes, for example, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date. These exclusions from the term “psychotherapy notes” are an indication of what might be expected to be present or addressed in mental health treatment records. For those who are not covered entities under HIPAA, it may be useful to review the state law or regulation that allows a practitioner to provide a summary of the treatment records (to the requesting patient) in lieu of the actual records, and the circumstances when that may be done. In such situations, the applicable law or regulation may require, as it does in California, that specific content be covered in the summary provided to the patient. The content specified for inclusion in the summary may help practitioners decide upon the content of their actual and more complete treatment records.

I have written about this subject matter (record-keeping) in past issues of the Avoiding Liability Bulletin, found in the Avoiding Liability Bulletin section of the CPH and Associates’ website. There are various aspects of the law that relate to records or record-keeping, and the archives is a good place to start for those who are interested.

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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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