The Portable Lawyer for Mental Health Professionals

The Portable Lawyer for Mental Health Professionals

The Portable Lawyer for Mental
Health Professionals
The Portable Lawyer for
Mental Health Professionals
An A-Z Guide to Protecting Your Clients,
Your Practice, and Yourself
Third Edition
Thomas L. Hartsell, Jr., JD
and
Barton E. Bernstein, JD, LMSW
Cover image: Top light blue panel: Tobias Helbig/iStockphoto;
Bottom green panel: Roberto Vannucci/iStockphoto
Cover design: John Wiley & Sons, Inc.
This book is printed on acid-free paper.
Copyright
2013 by John Wiley & Sons, Inc. All rights reserved.
Published by John Wiley & Sons, Inc., Hoboken, New Jersey.
Published simultaneously in Canada.
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Library of Congress Cataloging-in-Publication Data:
Hartsell, Thomas L. (Thomas Lee), 1955The portable lawyer for mental health professionals : an A-Z guide to protecting your clients, your practice, and
yourself / Thomas L. Hartsell, Jr., JD and Barton E. Bernstein, JD, LMSW. — Third edition.
pages cm
Includes bibliographical references and index.
ISBN 978-1-118-34108-7 (paperback); ISBN 978-1-118-42016-4 (ebk); ISBN 978-1-118-41652-5 (ebk);
ISBN 978-1-118-57312-9 (ebk)
1. Mental health laws—United States. 2. Mental health personnel—Legal status, laws, etc.—United States.
I. Bernstein, Barton E. II. Title.
KF3828.H37 2013
344.7304 4—dc23
2012048963
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
I dedicate this book to my Dad, Tom Hartsell, Sr., aka Pops, who we lost this summer, and miss
greatly. Pops, you were the best man I will ever know. I will do my best to follow and live up to
the example you set for me.
To Barbara, my inspiring and loving wife, whose ability to patiently cohabitate with me never
ceases to amaze and please me. I appreciate all you do to keep the home fires stoked and inviting.
To my Mom, Julie Hartsell, as I have stated many times before, I owe you and Pops
everything. I am so blessed that you survive and are still there for me. I hope that remains true
for a good while longer and I wish you nothing but joy and happiness.
To Bill and Paula Edwards, my in-laws, the love and kindness you never fail to direct my
way is very much treasured. I am doubly blessed that you survive and are still there for Barbara
and me.
To Bart Bernstein, my coauthor, mentor, and friend, you have taught me much and inspired
me even more. I am triply blessed that I still have you and your friendship and wisdom to draw
on and I pray that this holds true for a long time into the future. It comforts me to know you are
there for me.
To Dr. Tony Picchioni, Chair of the Programs of Dispute Resolution and Counseling at
Southern Methodist University, who continues to impress and inspire me with his vision and
leadership. You have blessed me with the opportunity to participate in the two wonderful programs
at SMU that you now chair and were so instrumental in creating and shaping. Thank you for
giving me the opportunity to teach and work for you and the university in these programs. I am
additionally blessed by your friendship and support.
To Debbie Picchioni, the wife of Dr. Tony Picchioni, to whom I literally owe my life. Your
intervention when I was imprudently ignoring a serious health issue would have turned out much
differently if you had not come to my aid. Thanks for being such a caring and good friend not just
to me, but to all of us at SMU. You’re the greatest, and Tony, and all of us, are lucky to have
you in our lives.
To all my fellow faculty members at SMU, Dr. Hal Barkley, Dr. Betty Gilmore, Dr. Bob
Barner, Dr. Misty Solt, Dr. Sarah Feuerbacher, Dr. Gay McCalister, Dr. Heather McMinn,
Sabine Rakos, Dr. Maggy Keeling, Gary Robinson, and Dr. John Potter, thank you for your
friendship, kindness, and collegiality, which makes working at SMU such a joy. You have all
taught me much for which I will always be grateful.
To my sons, Ryan and Jason, and stepsons, Glenn and Chandler, all of whom I am still sure
have not read any of our books and may never read this latest edition. Thank you for becoming
independent, solid citizens of whom Barbara and I are very proud.
Lastly, to my two four-legged pals, Ol’ Dexter, and Mr. Mojo, who never cease to warm my
heart, amuse me, and give me comfort when I come home from a long hard day. I give a special
dedication to Eily, our miniature Schnauzer, who we had to let go this year. You were a sweet
and loving friend and we all miss you dearly.
—TLH, 2013
To my beloved wife, Donna Jean Bernstein, educator and loving support system, and to my
daughter, Talya Galaganov, the lawyer, and to Doctor Misha Galaganov, Professor of Music,
and to my son Alon Bernstein, the merchant. Also, Sima, Haya, and Yair Galaganov, my
grandchildren.
—BEB, 2013
Contents
Sample Forms
xi
Preface xiii
Acknowledgments xvii
SECTION ONE
CLINICAL RECORDS: PROTECTED OR NOT
1
Clinical Notes
3
2
Consent to Disclosure Forms
3
Correcting Errors
4
Discharge or Termination
5
Electronic Records
6
Intake and Consent Forms
7
Maintaining Records
8
Treatment Plans and Client Access to Records
11
19
26
34
43
66
77
SECTION TWO
CONFIDENTIALITY
9
Couples, Family, and Group Therapy
10
Insider Information
11
Third-Party Payers
95
102
108
SECTION THREE
CONTRACTS
12
Capitation Agreements
13
‘‘Gag Rules’’
126
14
Office Leases
134
119
vii
viii
Contents
SECTION FOUR
FEES
15
Setting Fees 145
16
Sliding Fee Scales 152
17
Recovering Unpaid Fees 159
SECTION FIVE
FORENSIC ISSUES
18
Abuse Allegations 169
19
Child Custody and Consent-to-Treat Issues
20
Children as Witnesses
21
Expert Witness
22
Forensic Evaluation 205
23
Involuntary Commitment
24
Threats of Violence 220
177
186
193
213
SECTION SIX
PRACTICE MODELS
25
Groups
233
26
Partnerships
27
Solo Practitioner: Incorporate or Not?
240
247
SECTION SEVEN
HOW TO AVOID MALPRACTICE CHARGES
28
Acts of Commission
261
29
Acts of Omission
30
What to Do If You Are Sued
270
281
Contents
SECTION EIGHT
MANAGED CARE
31
Confidentiality Issues
32
Duty to Appeal
289
298
SECTION NINE
TEAMWORK
33
Legal Aspects of Delegating 307
34
Supervisor/Supervisee Responsibilities 311
SECTION TEN
UNUSUAL PRACTICES
35
Geriatric Clients 321
36
Nontraditional and Exotic Therapies 329
37
Internet Therapy
38
Social Media 351
336
SECTION ELEVEN
FEDERAL REGULATIONS, HIPAA, AND HITECH
39
HIPAA Overview 359
40
HIPAA Privacy Rule
41
Personal Representatives (45 CFR 164.502(g)) 376
42
Business Associates (45 CFR 164.502(a)(1–4), 164.502(e),
164.504(e), 164.532(d) and (e)) 382
43
Uses and Disclosures for Treatment, Payment, and Health Care
Operations (45 CFR 164.506) 390
44
Disclosures for Public Health Activities and Workers’
Compensation 398
361
ix
x
Contents
45
Marketing and Research (Accounting for Disclosures)
404
46
Notice of Privacy Practices for Protected Health Information
(45 CFR 164.520) 413
47
Restrictions on Government Access to Health Information
(45 CFR Part 160, Subpart C; 164.512(f)) 418
48
HIPAA Security Rule
49
The HITECH Act (42 U.S.C. Chapter 156)
422
APPENDIX A Bylaws for an IPA
439
447
APPENDIX B Partnership Agreement
461
APPENDIX C Articles of Incorporation: Professional Corporation 465
APPENDIX D Articles of Incorporation: General Corporation
469
APPENDIX E Certificate of Formation of a Professional Limited
Liability Company 473
APPENDIX F
Professional Limited Liability Company
Member Agreement 475
APPENDIX G Sample Business Associate Contract
481
APPENDIX H Business Associate Contract (Attorney Services)
490
APPENDIX I
Authorization for the Use and Disclosure of Protected
Health Information 498
APPENDIX J
Client Information Amendment Form
499
APPENDIX K Notice of Privacy Practices of
Susan A. Jones, LPC 501
APPENDIX L Accounting of Disclosures of Protected
Health Information 506
APPENDIX M Request for Accounting of Protected Health
Information Disclosures 507
APPENDIX N Authorization Revocation Form
References and Reading Materials
Author Index
513
Subject Index 515
509
508
Sample Forms
CLIENT FORMS
Client Termination Letter 31
Client Information and Consent 56
Informed Consent Form: Psychological Testing 86
HIPAA FORMS
Fax/E-Mail Confidentiality Clause
373
Fax Audit 374
Business Associate Contract (Billing Services)
481
Business Associate Contract (Attorney Services) 490
Authorization for the Use and Disclosure of Protected
Health Information 498
Client Information Amendment Form 499
Notice of Privacy Practices of Susan A. Jones, LPC 501
Accounting of Disclosures of Protected Health Information
Request for Accounting of Protected Health
Information Disclosures 507
506
Authorization Revocation Form 508
CONSENT FORMS
Consent to Therapist-to-Therapist Disclosure of Client
Records/Information 14
Single File for Joint Sessions 101
Consent for Release of Information Upon Insurance Assignment
114
Consent for Release of Information to Insurance Company 115
Consent to Disclosure of Confidential Information to Managed
Care Company 296
Specific Consent to Animal-Assisted Therapy 334
Specific Client Information and Consent Clauses for
Distance Therapy 348
xi
xii
Sample Forms
WAIVER FORMS
Parental Waiver of Right to Child’s Records
64
Client Waiver of Full Disclosure Clause 85
Agreement Not to Seek Testimony 203
MISCELLANEOUS FORMS
Group Confidentiality 100
Application for Limited Liability Partnership 246
Articles of Organization of Limited Liability Company
Ethical Standards in Managed Care 299
Social Media/Website Therapy Disclaimer
Bylaws for an IPA 447
Partnership Agreement 461
255
355
Articles of Incorporation: Professional Corporation
465
Articles of Incorporation: General Corporation 469
Certificate of Formation of a Professional Limited
Liability Company 473
Professional Limited Liability Company Member Agreement
475
Preface
Lawyers don’t know what therapists really do, so how can they know when
(if) they do it wrong.
Anonymous; first heard by the authors about 30 years ago
The governmental regulation of the delivery of mental health services is now
pervasive on both the state and federal level. It is virtually impossible to be a
practicing mental health professional without having secured both a graduate
degree in a mental health discipline and a license issued by a state board. If you
choose to become licensed in more than one discipline, such as counseling and
marriage and family therapy, you will need to complete the requisite course work
required by each discipline while earning your graduate degree and then pass the
licensing exam for each license as well as complete the supervised hours dictated
for each license. When fully licensed in both disciplines, you may find yourself
to be governed by two distinct state regulatory authorities.
Any license you receive is not permanent; it is loaned to the licensee, who may
act only within the authority granted by the license. If a license violation occurs
because of an ethical infraction, as defined by the licensing law; or continuing
education credits are not sought and maintained; or a renewal is late; or a check
for renewal does not clear the bank, the license can be revoked or suspended, thus
ending or interrupting a professional career. The power of the licensing board
is awesome and seriously applied. Also, malpractice suits have both intended
and unintended consequences. Professional liability insurance coverage is always
recommended.
With increased regulation has come greater oversight of mental health
professionals. The authors have noticed that technical violations or mistakes
by licensed practitioners often result now in published sanctions being imposed
by regulatory authorities in lieu of advisory letters. The need for continuing
education, therefore, both formal and informal, has never been greater. Mental
health professionals face harsh consequences if they act negligently or unethically
with clients, the institutions with which they are associated, or both. They may
not be allowed to renew their malpractice insurance policies; or they may fail to
qualify as managed care providers because of a blemish on their record. In short,
accountability requires in-depth knowledge of the law as well as published ethical
standards, which are promulgated by all licensing boards and most national
organizations.
The Portable Lawyer is primarily directed to mental health professionals of
all disciplines who can benefit from a quick and ready reference to legal and
xiii