By Amanda I. Forbes, J.D.
One of the key professional obligations of any psychotherapist involves providing reasonable access to client/patient records and securely maintaining client/patient records, even after the termination of the psychotherapist-client relationship. Proper documentation of client treatment records is crucial for defending against malpractice lawsuits, licensing board complaints, ethics complaints and Medicare or health insurance audits.
Section B.6.h. of the American Counseling Association (“ACA”) Code of Ethics states:
Storage and Disposal After Termination
Counselors store records following termination of services to ensure reasonable future access, maintain records in accordance with federal and state laws and statutes such as licensure laws and policies governing records, and dispose of client records and other sensitive materials in a manner that protects client confidentiality. Counselors apply careful discretion and deliberation before destroying records that may be needed by a court of law, such as notes on child abuse, suicide, sexual harassment, or violence.
When Developing a Records Retention Policy For Your Practice, You Should Consider the Following:
1. Contact the licensing board where you practice to ensure compliance with its specific record retention guidelines. You can also check for any rules it has enacted online.
2. Follow the most stringent guidelines. For example, if your health insurance contract or your professional liability insurance carrier requires a longer retention period that yourt state laws or rules, comply with the longer retention period.
3. Review and understand the requirements for record retention as stated in any health insurance contracts you may have.
4. If there is an absence of a minimum required record retention period in your state’s laws and your board’s rules, consider the following:
i. Retain records for adult clients for at least seven (7) years.
ii. For clients receiving Medicare or Medicaid benefits, retain records for at least ten (10) years, as Federal false claims action can be initiated against a counselor for up to ten (10) years.
iii. For minor clients consider retaining records until the client reaches the age of majority plus three (3) years or the times stated immediately above, whichever is longer.
Additionally, as stated in Section B.6.h., ACA Code of Ethics, counselors must exercise careful judgment and thoughtful consideration when destroying records that may be required by a licensing board or court, such as records regarding suicide, child abuse, elder abuse, sexual harassment, any other forms of violence, or ongoing litigation.
Section C.2.h., ACA Code of Ethics, states:
Counselor Incapacitation, Death, Retirement, or Termination of Practice
Counselors prepare a plan for transferring clients and disseminating records to an identified colleague or records custodian in the case of the counselor’s incapacitation, death, retirement, or termination of practice.
Therefore, you must select a colleague or record custodian capable of handling the transition of clients and managing the distribution of records in the event of your retirement or incapacitation.
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents mental health counselors, social workers, professional counselors, nurse practitioners, psychologists, and other psychotherapists in issues relating to health records and electronic health records. It also represents mental health counselors, social workers, professional counselors, nurse practitioners, psychologists, and other psychotherapists in regulatory matters, licensing issues, litigation, inspections and audits involving Medicare, Medicaid and health insurers, the Department of Health (DOH) and law enforcement agencies. Its attorneys advise on legal and regulatory matters involving health professionals and health facilities. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620; Visit our website at www.TheHealthLawFirm.com.
Sources:
Healthcare Providers Organization (HPSO). “Counselor Spotlight: Documentation.” (March 2019).
“2014 ACA Code of Ethics.” American Counselors Association. (2014).
About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.
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