Florida Ethics and Boundary Issues

             

Course Objectives

By completing this course the healthcare professional will be able to:

1.  Describe the problematic issues associated with boundary violations.

2.  Describe how the supervisory role can be used to prevent the violation of boundaries.

3.  Identify how enactment may lead to sexual misconduct.

4.  Identify the ethical and legal principals of confidentiality.

5.  Describe confidentiality laws and the impact of those laws on the therapeutic relationship.

 

Reporting Child Abuse

Mandated Reporting Law: When a therapist or an intern or trainee, in his or her professional capacity, acquires knowledge or a reasonable suspicion that a child is being abused (or has been abused), he or she must make a telephone report immediately and a written follow-up within 36 hours to the appropriate authorities.


Categories of Child Abuse: physical abuse, sexual abuse, severe and general neglect, willful cruelty and unjustifiable punishment, corporal punishment and injury and abuse in out-of-home care.


Categories of Sexual Abuse: The two categories of sexual abuse are sexual assault and sexual exploitation. Sexual assault includes rape and rape in concert, oral copulation and sodomy, lewd and lascivious acts upon a child under the age of 14, penetration of a genital or anal opening by a foreign object and child molestation.  Unlawful sexual intercourse with a child under the age of 16 when the perpetrator is over the age of 21 is reportable as child abuse.  Another crime also reportable is lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more that 10 years older than the victim.  Sexual exploitation includes conduct involving matter depicting minors engaged in obscene acts; promoting, aiding or assisting a minor to engage in prostitution, a live performance involving obscene sexual conduct or posing for a pictorial depiction involving obscene conduct for commercial purposes; and depicting a child in or knowingly developing a pictorial depiction in which a child engages in obscene sexual conduct.

A report of child abuse is not required when a therapist learns of the abuse in a setting outside his or her professional capacity. A report is also not mandated when a therapist learns of a case involving an adult who was abused as a minor. In this case, however, clinical and ethical considerations will bear on a therapist's course of action. For example, when a therapist learns of an adult who was abused as a child, that therapist should make an effort to learn whether the perpetrator continues to have access to children. If so, and the circumstances arouse a reasonable suspicion of child abuse, the clinician must file a report. Consensual, non-abusive sex between two 13-year-olds is not reportable, but would become reportable when just one of the partners turns 14.


When, in the course of his or her professional role, a psychotherapist either knows or reasonably suspects that a minor is being abused, they have a legal obligation to report what he or she knows of the situation to the proper authorities (Child Protective Services, police, county probation offices or county welfare office) by telephone as soon as possible, with a written follow-up required within 36 hours. The therapist has no discretion in this matter and may be liable for prosecution if he or she does not report.

 The requirement to report child abuse and neglect became public policy in all States by 1965 with the passage of the first child abuse reporting law, which only required physicians to report physical abuse. Since that time, neglect, emotional abuse, and sexual abuse have been recognized as injurious to a child's physical and mental health, and reporting laws were amended to include these forms of child maltreatment. Those professionals required by law to make child abuse reports also expanded over the years to include teachers, nurses, mental health professionals, social workers, school custodians, day care providers, and others who are in regular contact with children.

Mental health professionals are now required by law in all States to report child abuse and neglect. The specific language of the States' reporting laws varies, but they typically cover circumstances when one acquires knowledge of or observes a child under conditions that give rise to a reasonable suspicion of child abuse and/or neglect; or, when one has knowledge of or observes a child whom he or she knows has been the victim of child abuse and neglect. "Reasonable suspicion" definitions may vary, but it is generally considered to occur when it is objectively reasonable for a person to entertain such a suspicion, based on his or her training and experience.

Child abuse must be reported when one who is a legally mandated reporter, has knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse.

The Reporting Mandate to Whom You Must Report

The report must be made to a "child protective agency." A child protective agency is a county welfare or probation department or a police or sheriff's department. Exceptions are reports by commercial print and photographic print processors, which are made to the law enforcement agency having jurisdiction. The mandated reporter must report the known or suspected incidence of child abuse to a child protective agency immediately or as soon as practically possible by telephone. You will speak to the social worker or law enforcement officer on duty.

Mandated reporters, however, are not legally required to tell involved individuals that a report is about to be made. The law does not require mandated reporters to tell the parents that a report is being made; however, in the majority of cases, advising the client is therapeutically advisable. First, the therapist is employing clinical leverage by using authority to set a firm and necessary limit. Reporting child abuse responds to the parents' nonverbal plea for help. The therapist can reassure the clients that steps will be taken to help the parents regain control so that the abuse does not lead to serious injury or emotional trauma to the child. Second, if the therapist does not mention the report, there is secrecy and tension, which may result in the clients' feelings of suspicion, isolation, or betrayal. In some cases, reporting may elicit an extreme response from the clients. It is contra-indicated to inform parents about the report if the individual seems psychotic, has poor impulse control coupled with a history of violent behavior, has a problem with alcohol or drugs, or is likely to flee. It can be very beneficial to give clients the opportunity to make the reports themselves in the therapist's presence. A self-report, however, does not negate the therapist's mandate to report.

Health practitioners, including MFTs, psychologists, professional counselors and social workers, are legally mandated reporters. Other legally mandated reporters include child care custodians, teachers, teacher's assistants, employees of child protective agencies and commercial film and photographic print processors. Legally mandated reporters are required to give their names.

Child abuse is defined as “a physical injury which is inflicted by other than accidental means on a child by another person.” Child abuse also means the sexual abuse of a child or any act or omission, willful cruelty or unjustifiable punishment of a child, or unlawful corporal punishment or injury. Child abuse also means the neglect of a child or abuse in out-of-home care. Child abuse does not include any injury caused by reasonable and necessary force used by a peace officer . Abuse must be reported “even if a suspected child abuse victim has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy.”

Please keep in mind that your responsibility is only to report suspected abuse, not investigate it. Your attempts to investigate may have unforeseen negative impacts on the child and family. Leave it for the child welfare professionals.

The following types of abuse must be reported by legally mandated reporters:

Physical Abuse: Physical injury inflicted by other than accidental means.
Sexual Abuse: Sexual abuse includes sexual assault and sexual exploitation.

Sexual assault is defined as:

Rape and rape in concert: This includes any forced sexual activity with anyone under age 18, or helping someone else rape a minor.

Incest: Incest is any sexual activity between parents and children, ancestors and descendants, siblings and between uncles or nieces and aunts or nephews.
Oral copulation and sodomy

Lewd and lascivious acts upon a child under the age of 14: This refers to any sexual touching or intercourse with a male or female child under the age of 14, even if it is consensual. If “lewd and lascivious” behavior occurring between minors, when each is under the age of 14 years, is not reportable, as long as the minors are of roughly the same age and there is no coercion involved.  However, lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more than 10 years old than the victim is reportable.
Child molestation

Sexual Explotation - Conduct depicting a minor engaged in obscene acts, including preparing, selling or distributing the obscene matter and/or employing a minor to perform obscene acts; any person knowingly promoting, aiding or assisting, employing, using, persuading, inducing or coercing a child, or any parent or guardian of a child under his or her control knowingly permitting or encouraging a child  to engage in or assisting either to engage in prostitution or a live performance involving obscene sexual conduct or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, picture or other pictorial depiction involving obscene sexual conduct for commercial purposes; any person depicting a child in or who knowingly developing, duplicating, printing or exchanging any film, photograph, videotape, negative or slide in which a child is engaged in an act of obscene sexual conduct.

Severe and General Neglect: Acts or omissions committed by a person responsible for a child that harm or threaten to harm the child's health or welfare.

Severe neglect: “the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive.”  Severe neglect also means those situations of neglect where “any person having the care or custody of a child willfully causes or permits the person or health of the child such that his or her person or health is endangered including the intentional failure to provide adequate food, clothing, shelter or medical care.”
General neglect: This is defined as “the negligent failure of a person having the care or custody of a child to provide adequate, food, clothing, shelter, medical care or supervision where no physical injury has occurred.”

Willful Cruelty and Unjustifiable Punishment: This refers to situations in which “any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering.
Corporal Punishment and Injury: This refers to “a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”

If a therapist hears about child abuse from a third party, and this raised a reasonable suspicion of abuse, the therapist must make a report if the information was revealed to the therapist within their professional capacity.

Confidentiality: The identity of all reporters is considered confidential and is disclosed only between child protective agencies.

Immunity: Mandated reporters have immunity from criminal and civil liability for reporting as required.
Any other person who reports a known or suspected case of child abuse is also protected from civil and criminal liability, unless it can be proven that the person deliberately made a false report.

Privilege: The Child Abuse Reporting Law takes precedence over laws governing the psychotherapist-patient privilege.

Failure to Report: A failure to report known or suspected child abuse when mandated to do so is considered a misdemeanor and is punishable by a term in jail not to exceed six months or by a fine not to exceed $1,000 or by both.


2006 Florida Statutes

CHAPTER 491

CLINICAL, COUNSELING, AND PSYCHOTHERAPY SERVICES

491.009  Discipline.--

(1)  The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(a)  Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department.

(b)  Having a license, registration, or certificate to practice a comparable profession revoked, suspended, or otherwise acted against, including the denial of certification or licensure by another state, territory, or country.

(c)  Being convicted or found guilty of, regardless of adjudication, or having entered a plea of nolo contendere to, a crime in any jurisdiction which directly relates to the practice of his or her profession or the ability to practice his or her profession. However, in the case of a plea of nolo contendere, the board shall allow the person who is the subject of the disciplinary proceeding to present evidence in mitigation relevant to the underlying charges and circumstances surrounding the plea.

(d)  False, deceptive, or misleading advertising or obtaining a fee or other thing of value on the representation that beneficial results from any treatment will be guaranteed.

(e)  Advertising, practicing, or attempting to practice under a name other than one's own.

(f)  Maintaining a professional association with any person who the applicant, licensee, registered intern, or certificateholder knows, or has reason to believe, is in violation of this chapter or of a rule of the department or the board.

(g)  Knowingly aiding, assisting, procuring, or advising any nonlicensed, nonregistered, or noncertified person to hold himself or herself out as licensed, registered, or certified under this chapter.

(h)  Failing to perform any statutory or legal obligation placed upon a person licensed, registered, or certified under this chapter.

(i)  Willfully making or filing a false report or record; failing to file a report or record required by state or federal law; willfully impeding or obstructing the filing of a report or record; or inducing another person to make or file a false report or record or to impede or obstruct the filing of a report or record. Such report or record includes only a report or record which requires the signature of a person licensed, registered, or certified under this chapter.

(j)  Paying a kickback, rebate, bonus, or other remuneration for receiving a patient or client, or receiving a kickback, rebate, bonus, or other remuneration for referring a patient or client to another provider of mental health care services or to a provider of health care services or goods; referring a patient or client to oneself for services on a fee-paid basis when those services are already being paid for by some other public or private entity; or entering into a reciprocal referral agreement.

(k)  Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to s. 491.0111.

(l)  Making misleading, deceptive, untrue, or fraudulent representations in the practice of any profession licensed, registered, or certified under this chapter.

(m)  Soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.

(n)  Failing to make available to a patient or client, upon written request, copies of tests, reports, or documents in the possession or under the control of the licensee, registered intern, or certificateholder which have been prepared for and paid for by the patient or client.

(o)  Failing to respond within 30 days to a written communication from the department or the board concerning any investigation by the department or the board, or failing to make available any relevant records with respect to any investigation about the licensee's, registered intern's, or certificateholder's conduct or background.

(p)  Being unable to practice the profession for which he or she is licensed, registered, or certified under this chapter with reasonable skill or competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance. In enforcing this paragraph, upon a finding by the secretary, the secretary's designee, or the board that probable cause exists to believe that the licensee, registered intern, or certificateholder is unable to practice the profession because of the reasons stated in this paragraph, the department shall have the authority to compel a licensee, registered intern, or certificateholder to submit to a mental or physical examination by psychologists, physicians, or other licensees under this chapter, designated by the department or board. If the licensee, registered intern, or certificateholder refuses to comply with such order, the department's order directing the examination may be enforced by filing a petition for enforcement in the circuit court in the circuit in which the licensee, registered intern, or certificateholder resides or does business. The licensee, registered intern, or certificateholder against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee, registered intern, or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice for which he or she is licensed, registered, or certified with reasonable skill and safety to patients.

(q)  Performing any treatment or prescribing any therapy which, by the prevailing standards of the mental health professions in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.

(r)  Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee, registered intern, or certificateholder is not qualified by training or experience.

(s)  Delegating professional responsibilities to a person whom the licensee, registered intern, or certificate holder knows or has reason to know is not qualified by training or experience to perform such responsibilities.

(t)  Violating a rule relating to the regulation of the profession or a lawful order of the department or the board previously entered in a disciplinary hearing.

(u)  Failure of the licensee, registered intern, or certificateholder to maintain in confidence a communication made by a patient or client in the context of such services, except as provided in s. 491.0147.

(v)  Making public statements which are derived from test data, client contacts, or behavioral research and which identify or damage research subjects or clients.

(w)  Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

491.0112  Sexual misconduct by a psychotherapist; penalties.--

(1)  Any psychotherapist who commits sexual misconduct with a client, or former client when the professional relationship was terminated primarily for the purpose of engaging in sexual contact, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083; however, a second or subsequent offense is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Any psychotherapist who violates subsection (1) by means of therapeutic deception commits a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  The giving of consent by the client to any such act shall not be a defense to these offenses.

(4)  For the purposes of this section:

(a)  The term "psychotherapist" means any person licensed pursuant to chapter 458, chapter 459, part I of chapter 464, chapter 490, or chapter 491, or any other person who provides or purports to provide treatment, diagnosis, assessment, evaluation, or counseling of mental or emotional illness, symptom, or condition.

(b)  "Therapeutic deception" means a representation to the client that sexual contact by the psychotherapist is consistent with or part of the treatment of the client.

(c)  "Sexual misconduct" means the oral, anal, or vaginal penetration of another by, or contact with, the sexual organ of another or the anal or vaginal penetration of another by any object.

(d)  "Client" means a person to whom the services of a psychotherapist are provided.

491.012  Violations; penalty; injunction.--

(1)  It is unlawful and a violation of this chapter for any person to:

(a)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a clinical social worker issued pursuant to this chapter:

1.  "Licensed clinical social worker."

2.  "Clinical social worker."

3.  "Licensed social worker."

4.  "Psychiatric social worker."

5.  "Psychosocial worker."

(b)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a marriage and family therapist issued pursuant to this chapter:

1.  "Licensed marriage and family therapist."

2.  "Marriage and family therapist."

3.  "Marriage counselor."

4.  "Marriage consultant."

5.  "Family therapist."

6.  "Family counselor."

7.  "Family consultant."

(c)  Use the following titles or any combination thereof, unless she or he holds a valid, active license as a mental health counselor issued pursuant to this chapter:

1.  "Licensed mental health counselor."

2.  "Mental health counselor."

3.  "Mental health therapist."

4.  "Mental health consultant."

(d)  Use the terms psychotherapist, sex therapist, or juvenile sexual offender therapist unless such person is licensed pursuant to this chapter or chapter 490, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health and the use of such terms is within the scope of her or his practice based on education, training, and licensure.

(e)  Present as her or his own the clinical social work, marriage and family therapy, or mental health counseling license of another.

(f)  Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license.

(g)  Use or attempt to use a license issued pursuant to this chapter which has been revoked or is under suspension.

(h)  Knowingly conceal information relative to violations of this chapter.

(i)  Practice clinical social work in this state for compensation, unless the person holds a valid, active license to practice clinical social work issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(j)  Practice marriage and family therapy in this state for compensation, unless the person holds a valid, active license to practice marriage and family therapy issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(k)  Practice mental health counseling in this state for compensation, unless the person holds a valid, active license to practice mental health counseling issued pursuant to this chapter or is an intern registered pursuant to s. 491.0045.

(l)  Use the following titles or any combination thereof, unless he or she holds a valid registration as an intern issued pursuant to this chapter:

1.  "Registered clinical social worker intern."

2.  "Registered marriage and family therapist intern."

3.  "Registered mental health counselor intern."

(m)  Use the following titles or any combination thereof, unless he or she holds a valid provisional license issued pursuant to this chapter:

1.  "Provisional clinical social worker licensee."

2.  "Provisional marriage and family therapist licensee."

3.  "Provisional mental health counselor licensee."

(n)  Effective October 1, 2000, practice juvenile sexual offender therapy in this state, as the practice is defined in s. 491.0144, for compensation, unless the person holds an active license issued under this chapter and meets the requirements to practice juvenile sexual offender therapy. An unlicensed person may be employed by a program operated by or under contract with the Department of Juvenile Justice or the Department of Children and Family Services if the program employs a professional who is licensed under chapter 458, chapter 459, s. 490.0145, or s. 491.0144 who manages or supervises the treatment services.

(2)  It is unlawful and a violation of this chapter for any person to describe her or his services using the following terms or any derivative thereof, unless such person holds a valid, active license under this chapter or chapter 490, or is certified under s. 464.012 as an advanced registered nurse practitioner who has been determined by the Board of Nursing as a specialist in psychiatric mental health and the use of such terms is within the scope of her or his practice based on education, training, and licensure:

(a)  "Psychotherapy."

(b)  "Sex therapy."

(c)  "Sex counseling."

(d)  "Clinical social work."

(e)  "Psychiatric social work."

(f)  "Marriage and family therapy."

(g)  "Marriage and family counseling."

(h)  "Marriage counseling."

(i)  "Family counseling."

(j)  "Mental health counseling."

(3)  Any person who violates any provision of subsection (1) or subsection (2) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(4)  The department may institute appropriate judicial proceedings to enjoin violation of this section.

491.0141  Practice of hypnosis.--A person licensed under this chapter who is qualified as determined by the board may practice hypnosis as defined in s. 485.003(1). The provisions of this chapter may not be interpreted to limit or affect the right of any person qualified pursuant to chapter 485 to practice hypnosis pursuant to that chapter or to practice hypnosis for nontherapeutic purposes, so long as such person does not hold herself or himself out to the public as possessing a license issued pursuant to this chapter or use a title protected by this chapter.

491.0143  Practice of sex therapy.--Only a person licensed by this chapter who meets the qualifications set by the board may hold herself or himself out as a sex therapist. The board shall define these qualifications by rule. In establishing these qualifications, the board may refer to the sexual disorder and sexual dysfunction sections of the most current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association or other relevant publications.

491.0144  The practice of juvenile sexual offender therapy.--Only a person licensed by this chapter who meets the qualifications set by the board may hold himself or herself out as a juvenile sexual offender therapist, except as provided in s. 490.0145. These qualifications shall be determined by the board. The board shall require training and coursework in the specific areas of juvenile sexual offender behaviors, treatments, and related issues. In establishing these qualifications, the board may refer to the sexual disorder and dysfunction sections of the most current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, Association for the Treatment of Sexual Abusers Practitioner's Handbook, or other relevant publications.

Confidentiality is designed to reduce the stigma associated with seeking mental health care, foster trust in the treatment relationship and ensure individuals privacy in their health care decisions. Informed consent and confidentiality are important anchors to the principle of autonomy. If a patient believes that the information they share will be disseminated they will be less likely to seek treatment and be less likely to be completely honest.

491.0147  Confidentiality and privileged communications.--Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:

(1)  When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.

(2)  When the patient or client agrees to the waiver, in writing, or, when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.

(3)  When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.

491.0148  Records.--Each psychotherapist who provides services as defined in this chapter shall maintain records. The board may adopt rules defining the minimum requirements for records and reports, including content, length of time records shall be maintained, and transfer of either the records or a report of such records to a subsequent treating practitioner or other individual with written consent of the client or clients.

491.0149  Display of license; use of professional title on promotional materials.--

(1)(a)  A person licensed under this chapter as a clinical social worker, marriage and family therapist, or mental health counselor, or certified as a master social worker shall conspicuously display the valid license issued by the department or a true copy thereof at each location at which the licensee practices his or her profession.

(b)1.  A licensed clinical social worker shall include the words "licensed clinical social worker" or the letters "LCSW" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

2.  A licensed marriage and family therapist shall include the words "licensed marriage and family therapist" or the letters "LMFT" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

3.  A licensed mental health counselor shall include the words "licensed mental health counselor" or the letters "LMHC" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

(2)(a)  A person registered under this chapter as a clinical social worker intern, marriage and family therapist intern, or mental health counselor intern shall conspicuously display the valid registration issued by the department or a true copy thereof at each location at which the registered intern is completing the experience requirements.

(b)  A registered clinical social worker intern shall include the words "registered clinical social worker intern," a registered marriage and family therapist intern shall include the words "registered marriage and family therapist intern," and a registered mental health counselor intern shall include the words "registered mental health counselor intern" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the registered intern.

(3)(a)  A person provisionally licensed under this chapter as a provisional clinical social worker licensee, provisional marriage and family therapist licensee, or provisional mental health counselor licensee shall conspicuously display the valid provisional license issued by the department or a true copy thereof at each location at which the provisional licensee is providing services.

(b)  A provisional clinical social worker licensee shall include the words "provisional clinical social worker licensee," a provisional marriage and family therapist licensee shall include the words "provisional marriage and family therapist licensee," and a provisional mental health counselor licensee shall include the words "provisional mental health counselor licensee" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the provisional licensee.


HIPAA

Covered Entities:

 All health professionals who send information via electronic transmission are considered “Covered Entities” and all HIPAA rules apply to them. What one must do as a Covered Entity to become compliant with HIPAA will be covered here. However, this should not be seen as covering all aspects of compliance.

Individual practitioners may have practices which differ in important ways from the majority of other practitioners and may require additional changes in their operating procedures to become compliant. Also, as the task force continues its work on integrating laws governing the health professions with HIPAA regulations, new laws may become an additional part of what one must do to become or remain compliant. Continue to check with your professional organizations and licensing boards for updates.

Exempt Mental Health Professionals:

 If you are a health care provider who never transmits electronic data regarding patients you are not required, at this time, to comply with the HIPAA regulations and are not considered a “Covered Entity.” However, HIPAA is very quickly becoming the standard of care by which health care providers’ office practices are regulated. In other words, you may be found to be negligent with your patient’s records and confidentiality if you do not move your office practices into compliance.

Business Associate:

 A business associate is a person or entity other than the therapist’s immediate workforce which receives confidential or PHI information from the therapist and provides services to the therapist. Among others, these may include a bookkeeper, lawyer, accountant, collection agency, answering service, computer service, or answering service. Business associates are not considered Covered Entities by HIPAA. The PHI may be given to a business associate only after the therapist has obtained a written contract with that person who notifies them that they must safeguard confidential information and how to do so appropriately. Samples of business associate contracts may be obtained online:

It is ultimately the therapist’s responsibility to be certain that the business associate follows the contract. Any subcontractors hired by the business associate must also sign a written contract agreeing to safeguard the PHI. If a business associate is found to have violated the contract, the therapist will need to make certain that steps are taken to repair the problem. If the problem is irreparable or if additional problems occur, the therapist may have to terminate the business associate and/or report the problem to HHS.

Another therapist to whom patients are referred during one’s absence is not considered a business associate. Additionally, janitorial, plumbing, electrical, or other repairmen are not considered business associates. Any postal service is not a business associate either under HIPAA. Business associate relationships are also not created by federal or state oversight committees such as the Medicare Peer Review. A therapist should not consider other therapists within one’s own practice or a consultant who is used for treatment purposes as a business associate. None of these are considered Covered Entities by HIPAA.

Becoming Compliant with HIPAA:

 Luckily, for a solo or small group of health professionals, the process of achieving HIPAA compliance is a fairly easy task, particularly if you have already been following the laws for privacy within your field. HIPAA has required many more administrative responsibilities for large corporations such as hospitals and large clinics. They are likely to need a full-time Privacy Officer while within a smaller private practice, you can designate yourself as the Privacy officer and take care of the necessary changes without a great deal of difficulty.

There are, however, several important changes which should be made as soon as possible. It is likely you will need to take and keep two sets of notes, learn new rules about patient’s access to their clinical records, learn the rules about the rights patients now have to amend their records, and develop new forms for Consent for services and Authorization by the patient to have others see their records or otherwise consult with you about your patient. Additionally, there are new rules about how one must secure records in computers. Unfortunately, if you somehow trigger a HIPAA audit, the likelihood of a lawsuit or fines is high. Additionally, you must be in full compliance immediately since there is no grace period.

Because HIPAA may become the general law which is followed by all states, it is likely that if you are not in compliance you will be open to a lawsuit under a state law you may have overlooked or which may have become law since your last law and ethics class.

Steps to HIPAA Compliance:

 These steps apply only to solo practices or those of small groups and should not be taken to apply to hospitals or large clinics. The rules for these entities are different in important ways.

 1. Designate a Privacy Officer: This person is responsible for meeting HIPAA requirements by developing the necessary new documents, computer storage of patient records, training staff to comply with regulations, and review the changes. The privacy officer should post or provide each patient, whether new or continuing with a Notice of Privacy Practices. Additionally, an announcement should be placed in a public area which includes the following:

Our Privacy Officer is (name of person). The Privacy Officer:

(a) Can answer your questions about our privacy practices;

(b) Can accept any complaints you have about our privacy practices;

(c) Can give you information on how to file a complaint.

You can call the Privacy Officer at (enter your office number.)

2. Comply with the Privacy Rule: The Privacy Rule applies to all Protected Health Information (PHI will be explained in #3 below.)Therapists are required to inform all patients of office privacy policies and how they are implemented. The patient’s records must be secured. Release of patient records for any reason either by the therapist, business associates, or staff cannot be done without informing the patient and obtaining the patient’s consent. These will be explained more thoroughly and suggestions for appropriate forms are available. A list of government sponsored and association sponsored websites will be provided at the end of this course.

3. PHI is Protected Health Information: Information which you have about your patient which identifies them as an individual when it is transmitted is PHI. All such material must be treated with utmost caution and respect for the rights of your patient. When the patient is identified by name, Social Security Number, or other means which make the patient identifiable by others requires that the material be classified as PHI. If the information contains PHI, all past, present, and future physical or mental health diagnoses, treatment of any sort, and billing or payment become confidential material.

It is crucial that all material containing PHI or information which identifies a patient be protected within the office. It is advisable to personally chart the flow of this information through your office. For example:

  • Is incoming mail secure and protected from unauthorized disclosure?
  • Is the information created within the office stored and protected?
  • Is the information recorded in other areas, such as on or off-site billing personnel have storage which is protected from unauthorized disclosure?
  • Is all incoming and outgoing electronic transmission secure?

HIPAA also requires that PHI material be available to be legitimately shared, sent out, or given to those who are authorized. If you personally see where the information comes in, is stored, used, created, and released, you will feel more confident that there is protection for these documents all along the line of transfer. It is helpful to some therapists to pretend these are their own personal records when deciding whether or not the records of their patients are securely protected throughout the process.

HIPAA requires that PHI be available within five days to an authorized agency under law.

The consequences of failing to be in compliance with HIPAA can be severe. Fines of up to $250,000 and imprisonment for up to ten years or both can be levied against an individual who knowingly perpetrates “wrongful disclosure of individual, identifiable, health information. Additionally the Office of Civil Rights at the US Department of Health and Human Services can initiate administrative action against non-compliant therapists. Patients can also file lawsuits if a therapist is non-compliant because their private health information is endangered. There may also be civil penalties but these cannot exceed $25,000 in one year.

For more information and HIPAA resources please visit the link below provided by the Department of Health and Human Services, Center for Disease Control and Prevention.

Required Reading: HIPAA Compliance

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