Confidentiality and “Record Keeping” By, Dr. Brian Campbell Disclaimer: The following information is based on Dr. Campbell’s interpretation of the current statutes in the state of Florida (Dec. 9, 2013). Dr. Campbell is not an attorney and does not guarantee or warrant the accuracy of his interpretation of the laws. The full statutes are provided in the appendix to this document. The applicable statutes are: 64B1919.002 Definitions; 64B19-19.0025 Standards for Records; 64B19-19.005 Releasing Psychological Records; 64B19-19.003 Maintenance and Retention of Records; 64B19-19.004 Disposition of Records Upon Termination or Relocation of Psychological Practice; 64B19-19.006 Confidentiality. Content of Records According to Florida statutes, records must include the following information: 1. 2. 3. 4. 5. 6. 7. Basic identification data: name, address, telephone number, age, and sex Presenting symptoms or requests for services Dates of service and types of service provided Test Data: Previous and current. History of relevant medical data and medication What transpired during the service session Significant actions by the psychologist, service user, and service payer (e.g., reporting abuse) 8. Psychologist’s indications of possible sensitive matters like threats (e.g., always document suicidal ideation, or suicidal plans) 9. Progress notes 10. Copies of correspondence related to assessment or services provided (e.g., test results) 11. Notes concerning relevant psychologist’s conversation with persons significant to the service user. 12. Informed Consent: written informed consent must be obtained concerning all aspects of services including assessment and therapy. 13. If applicable, informed consent for treatment by a provisional licensee working under the supervison of a licensed therapist 14. Financial Transactions: financial transactions between the psychologist and service user, including fees assessed and collected (billing software is available for recording financial transactions) Note: Entries in the records must be made within ten (10) days following each consultation or rendition of service. Entries that are made after the date of service should indicate the date the entries are made, as well as the date of service. Page |2 Maintenance and Retention of Records 1. Licensed psychologists maintain full responsibility for the control of all psychological records related to services rendered. 2. Complete psychological records must be retained for a minimum of 3 years after: The completion of planned services, or The date of last contact with the client, whichever occurs later in time. 3. Thereafter, either the complete psychological records or a summary of those psychological records shall be retained for an additional 4 years Exception: A licensed psychologist is not required to retain psychological records if the psychologist’s patients were assigned to the psychologist by a business entity which agrees to maintain and retain the confidentiality of the psychological records consistent with the rules for maintaining records. Disposition of Records Upon Termination or Relocation of Psychological Practice 1. Relocation of Psychologist: When a licensed psychologist terminates practice or relocates practice and is no longer available to service users in the practice area, the licensed psychologist shall provide notice of such termination or relocation of practice. 2. Notice of Relocation: The licensed psychologist shall cause such notice to be published in the newspaper of greatest circulation in the county from which the licensed psychologist is relocating or, in the case of termination of practice, in each county where the licensed psychologist has practiced. 3. Timeframe: Such notice shall be published weekly for four (4) consecutive weeks. 4. Contents of Notice: The notice shall contain the date of termination or relocation of practice and an address at which the psychological records of the service users may be obtained by them, their legal representatives, or licensed mental health professionals designated by service users in writing, to receive the service user’s records. 5. Death of the Psychologist: The executor, administrator, personal representative or survivor of a deceased licensed psychologist shall ensure the retention of psychological records in existence upon the death of the psychologist for a period of at least two (2) years and two (2) months from the date of the licensed psychologist’s death. 6. Notification of Death: Within 1 month of the licensed psychologist’s death, the executor, administrator, personal representative or survivor of the deceased licensed psychologist shall cause notice to be published in the newspaper of greatest general circulation in each county where the licensed psychologist practiced. Page |3 7. Timeframe: Such notice shall be published weekly for four (4) consecutive weeks and shall advise of the licensed psychologist’s death. Additional Instructions: See statutes for additional instructions on how to proceed after the death of the psychologist. Examples and Scenarios Definition of a Client: For purposes of informed consent, confidentiality issues, or the maintenance and/or release of psychological information, the client is the person who, by virtue of having a private consultation with the psychologist, has reason to expect that the individual’s communication during the private consultation will remain confidential, regardless of who is paying for the services. Example: If a husband is paying for his wife’s individual psychological treatment, the husband does not have a right to any information regarding the wife, unless a properly signed “release of confidential information” has been executed. Example: If the client is a minor, the parent or legal guardian has a right to access information regarding the child that transpires during the course of counseling. However, the psychologist may contract with the parent (verbally or in writing) to maintain confidentiality with the minor (especially if he/she is an adolescent) except for instances where there is clear and imminent danger to self or others. Example: If the psychologist is seeing a husband and wife (or any two people in a relationship) in conjoint or family therapy, it is the “marriage” or, “relationship” or, “family” that is being treated. Therefore, any request for a release of information to third parties would require a written consent form from both parties in the relationship in order for the psychologist to release information. Typically, when I am seeing a married couple, I ask each person to sign a “release of information” to the other person. That way, any information that might have come from one party during an individual session is still available (at the psychologist’s discretion) to the other party. When conducting marital counseling, I make it clear at the outset that I do not guarantee that I will honor requests to “keep this secret” from my spouse. There may be times that the psychologist may choose to not discuss information obtained from the other person in an indivdual session, but the assumption to the parties involved is that all information can and most often will be shared with the other person during the course of therapy. Scenario: The psychologist is seeing a couple in marital therapy. He has each client sign a release form acknowledging that information from the counseling session may be released to the other person in the relationship. The psychologist conducts a psychological evaluation of each party in counseling. One of the clients is diagnosed with bipolar disorder. The counseling does not end well, and the couple decides to get a divorce. As part of the divorce process, the attorney for the individual who was not diagnosed with bipolar disorder, obtains a signed consent for release of information from his client in order to request a copy of the therapy records from the psychologist. Page |4 Getting a subpoena for records can be a very disturbing thing for therapists. Counselors do not generally receive sufficient training in legal matters. From the way that subpoena’s are written, it can appear that the therapist is obligated (by law) to release records. However, in the above scenario, we will assume that there is information in the psychologist’s case notes and psychological records that deals with confidential information obtained from both parties (husband and wife). In instances like these, I write back to the attorney and provide a general statement (without using the names of my clients) about my practice of not releasing information in instances where a couple is being seen in counseling. I explain that in such cases, it is the “relationship” that is being treated and it will not be possible to release information unless I get a written release from both parties who were being treated. That usually casues the attorney who sent the subpoena to interact with the other person’s attorney. If I don’t get a release from both parties involved in counseling, I will not release any records. I will respectfully inform the attorney that I will only release records if I am ordered by a judge to do so. Actually, even if I do get a release of information from both parties, I rarely send my case notes. In Florida, it is acceptable to provide a summary of the treatment that was provided, rather than the case notes. I almost always opt for the summary. Also, attorney’s will often request copies of my test findings (psychological tests). However, I am not permitted, by regulation, to send copies of test data to attorneys. I am permitted to release test findings to other psychologists, who have the training required to understand and interpret the test results. However, I rarely release my test findings to any third party. The assessments that I conduct are for treatment purposes only, and are not forensic evaluations (that require safeguards for malingering, etc.). Example: Third party insurance. In my client handbook, which all clients must read and sign (signifying that they understand the contents), I specify that the client gives me permission to send information to insurance companies in order to obtain reimbursement for services. Example: In my handbook, clients also read and acknowledge that they understand that, from time to time, I may consult with their medical doctor regarding my treatment. By reading the handbook and signing acknowledgement and agreement with the contents of the handbook, the client gives permission for such “doctor-to-doctor” professional consultation. Scenario: A spouse (who has not been in therapy) calls the psychologist’s office and asks for information about the counseling that his wife is receiving. The secretary acknowledges that the wife is being seen by the psychologist, but insists that all information is confidential unless his wife signs a written “consent to release information.” Unfortunately, the secretary, by acknowledging that the client is being seen, has already divulged privileged information. The psychologist is responsible for training all personnel who work in the office regarding confidentiality issues and release of information requests. I have trained my wife to do intakes and to handle telephone calls in a way that is consistent with the laws Page |5 in Florida. Even with her training and experience, I personally always review any requests for release of information, and I am very careful about which kinds of information I release. Consent for Treatment of Minors: In the state of Florida, both parents (and legal guardians) technically must consent for the treatment of their minor child. However, consent for treatment is normally assumed even only one parents brings the child for treatment. That is, I typically treat minors with only the consent of one of the parents or legal guardians. However, if one of the parents calls to contest or object to my treatment of the child, I would normally stop treatment in that instance. Of course, I would attempt to infom the parent who is objecting that it would be in the child’s best interests to continue treatment. Securing Psychological Records: Because of the responsibility of maintaining the security of psychological records, it is important to keep the records in a locked filing system so that they are as secure as possible. Limiting Information in Psychological Records: Although you must comply with the law regarding the contents of psychological records (see above), it is generally a good idea to consider that everything you write in the client’s record can become “public” if you are ordered to release the records by a judge. As a result, I do not routinely put sensitive information in my case notes. For example, I would not write in my records that my client’s wife is having an affair with Mr. Jones. I might, instead, report that my client expressed concern over his wife’s curent relationships. Remember, everything you include in the psychological record may someday be read outloud in a court of law. If I incude more detailed information in my notes, I “qualify” my statements by identifying the source of statements being made. For example, I use expressions such as: “the client alleged that,” “ the client reported that his wife stated that,” “the wife was reportedly very angry after her husband allegedly threw something at her,” etc. Remember, you will rarely know the truth of what actually happens. Often, you are getting information “second hand,” or the truth is being filtered through the client’s own biases or pathology. Limiting Risk 1. Avoid Divorce Cases: If a couple is actively involved in divorce proceedings, or if an individual seeking counseling is actively involved in divorce proceedings, I would recommend extreme caution. It is likely that you will get “caught up” in the divorce proceedings and be asked to give testimony. Giving expert testimony is best left to forensic psychologists, who specialize in assessment and court testimony. 2. Avoid Custody Cases: Unless you are a trained forensic psychologist, you should not attempt to evaluate children or their parents to determine custody issues, such as the fitness of a parent, or which parent should obtain primary custody. If parents are in the middle of a custody battle, do not agree to see the parents or the children. Also, if you anticipate that divorce will become an issue sometime in the near future, then avoid Page |6 counseling the parents or the children. Issues of custody bring out strong emotions in clients and you do not want to get caught in the middle of a highly emotionally charged dispute over child custody. If you are seeing a family and divorce issues unexpectedly start to emerge, inform the clients that you are unable to give expert testimony regarding custody issues and then refer them to a forensic psychologist for evaluation. In the state of Florida, you need to have specialized training and experience to offer expert testimony regarding custody issues. 3. Avoid Child Abuse Cases: If parents call to say that they want you to assess their child to see if he/she is being physically or sexually abused, tell them that you are not qualified to do this type of assessment and that any suspicion of abuse will, by law, be immediately reported to authorities. There are very strict protocols required when assessing children for abuse. Police authorities have people specifically trained to assess whether or not abuse has occurred. If you try to do this yourself, you may seriously interfere with this evaluation process. 4. Reporting Potential Abuse: Professionals are required to report suspicion of abuse to authorities (through an abuse hotline). You do not have to have actual “proof” that abuse has occurred in the past or is currently occurring. You are obligated to report any suspicion of abuse. Notification of your duty to report should be included in your “consent for treatment” handbook or form. You are required to report suspected abuse of children, as well as the elderly, or a handicapped person of any age. 5. Document Significant Actions Taken: When reporting abuse, or when dealing with crisis situations (such as suicidal or homocidal threats), make sure that you carefully document all important actions you have taken. For example, if you report abuse, make a case note entry of the time you reported the suspected abuse and the “Case Number” or “Identifying Number” of the individual who took the information from you regarding the suspected abuse (e.g., Case Worker or Police Officer). I usually also inform the client during his/her treatment regarding the action I am required by law to take. I then document the fact that I informed the client of my intended actions. 6. Obtaining Legal Advice: Sometimes ethical issues become very complicated and you may need to obtain an attorney to help you assess your appropriate course of action. Try to find someone who is familiar with ethical issues facing professional counselors. 7. Malpractice Insurance: You should obtain malpractice insurance. Also, you should obtain insurance that protects you in case of “complaints against your license.” There are separate types of insurance for “malpractice” vs “complaints against your license.” One insures you in case you are being charged with harming a client (malpractice), whereas the other defends you if someone complains to the licensing board about something they feel that you did not do correctly (complaints). 8. Avoid Cases Where Clients Have a History of Suicide or Serious Psychological Page |7 Disorders; There are many disorders that you should not attempt to treat. Some psychologists I know do not see clients who have a known history of suicidal attempts. Other psychologists do not see individuals who are schizophrenic, bipolar, delusional, or those suffering with dissociative disorder. Serious personality disorders, such as borderline personality disorder or paranoid personality disorder can also prove to involve significant risk to the therapist because of the marked instability and unpredictable nature of these disorders. 9. Breaking Confidentiality: In general, you must break confidentiality with your client if you feel that the client is a “clear and imminent danger to self or others.” Assessing suicidality or homicidality requires considerable experience and training. Detailed information on this topic is beyond the scope of the current document. However, in general, with regard to assessing suicidality, suicidal ideation (having thoughts of suicide) are fairly common for seriously depressed individuals. The risk of actual attempts of suicide are increased if the client has: 1) attempted suicide in the past, or 2) if the client has made plans on how to commit suicide. There are many other signs and symptoms of suicidality with which you should become familiar. 10. Baker Act: In Florida, psychologists are given the right to force clients to be hospitalized (involuntarily) for an evaluation, if the psychologist feels (after personally assessing the client) that he/she is in clear and imminent danger to self or others. For clients who are willing to voluntarily go to the hospital for an evaluation, the psychologist ensures that the client goes immediately to a psychiatric facility for evaluation. For clients who refuse to go for evaluation, the psychologist calls the police and signs a formal “Baker Act” form that requires the police to take the client to a specified hospital for psychiatric evaluation (even if it is against the client’s will). For non-psychologists, if you feel that your client is suicidal, you should encourage the client to go immediately to a psychiatric hospital for further evaluation. You should not “leave this to chance”; that is, you should check to make sure that the client agrees to go immediately to the hospital, and check that he or she actually followed up on your request. If the person is in your office without any other adult (relative or friend), then you should have the client call a relative or friend to accompany him/her to the hospital. If the client will not go voluntarily to the hospital, or, if the client does not call back to say he/she has complied with your request and is at the hospital being assessed, then you should call the police and report your concerns. If your client is homicidal, then you should stop treatment and immediately call the police and report your client’s intentions. If you feel that you, the counselor, are in danger if you report the intentions of the client, then excuse yourself from the therapy session, go into another room or down the hallway, and call the police. Tell the police that the client is threatening to harm someone else and you are fearful for your safety. Page |8 Appendix Florida Statutes 64B19-19.002 Definitions. A “client”, or “patient” is that individual who, by virtue of private consultation with the psychologist, has reason to expect that the individual’s communication with the psychologist during that private consultation will remain confidential, regardless of who pays for the services of the psychologist. Specific Authority 490.004(4), 490.0147 FS. Law Implemented 490.009(2)(v), 490.0147 FS. History–New 8-12-90, Amended 4-1-92, Formerly 21U-22.002, 61F13-22.002, 59AA-19.002, Amended 9-18-97. 64B19-19.0025 Standards for Records. To serve and protect users of psychological services, psychologists’ records must meet minimum requirements for chronicling and documenting the services performed by the psychologist, documenting informed consent and recording financial transactions. (1) Records for chronicling and documenting psychologists’ services must include the following: basic identification data such as name, address, telephone number, age and sex; presenting symptoms or requests for services; dates of service and types of services provided. Additionally, as applicable, these records must include: test data (previous and current); history including relevant medical data and medication, especially current; what transpired during the service sessions; significant actions by the psychologist, service user, and service payer; psychologist’s indications suggesting possible sensitive matters like threats; progress notes; copies of correspondence related to assessment or services provided; and notes concerning relevant psychologist’s conversation with persons significant to the service user. (2) Written informed consent must be obtained concerning all aspects of services including assessment and therapy. (3) A provisionally licensed psychologist must include on the informed consent form the fact that the provisional licensee is working under the supervision of a licensed psychologist as required by Section 490.0051, F.S. The informed consent form must identify the supervising psychologist. (4) Records shall also contain data relating to financial transactions between the psychologist and service user, including fees assessed and collected. (5) Entries in the records must be made within ten (10) days following each consultation or rendition of service. Entries that are made after the date of service should indicate the date the entries are made, as well as the date of service. Specific Authority 490.004(4), 490.0148 FS. Law Implemented 490.002, 490.0051, 490.009(2)(s), (u), 490.0148 FS. History–New 11-23-97, Amended 10-22-98, 5-14-02. 64B19-19.005 Releasing Psychological Records. (1) Any licensed psychologist who agrees to provide copies of psychological records to a service user, a service user’s designee, or a service user’s legal representative, shall be accorded a reasonable time, not to exceed thirty (30) days, to make final entries and copy the psychological records, and may condition release of the copies upon payment by the requesting party of the reasonable costs of reproducing the records. (2) Any licensed psychologist who opts to issue a report rather than provide copies of psychological records to a service user, a service user’s designee, or a service user’s legal representative, shall issue the report within thirty (30) days of the request, and may charge a reasonable fee for the preparation of the report and may condition the issuance Page |9 of the report upon payment of the reasonable fee. (3) The psychologist’s notes pertaining to psychological services rendered may be considered raw data as provided by subsection 64B19-18.004(3), F.A.C., at the discretion of the psychologist and therefore can be released only (1) to a licensed psychologist or school psychologist licensed pursuant to Chapter 490, F.S., or Florida certified, or (2) when the release of the material is otherwise required by law. Rulemaking Authority 456.057, 490.004(4) FS. Law Implemented 456.057, 490.009(1)(n), 490.0147 FS. History–New 8-12-90, Amended 7-14-93, Formerly 21U22.005, Amended 6-14-94, Formerly 61F13-22.005, Amended 11-19-96, Formerly 59AA19.005, Amended 9-18-97, 6-4-02. 64B19-19.003 Maintenance and Retention of Records. (1) Licensed psychologists shall maintain psychological records for each service user and shall record information concerning consultations and/or services rendered by the psychologist to the service user within a reasonable time following that consultation or the rendition of that service. (2) Except as provided in subsection (4) of this rule, the licensed psychologist shall maintain full and total responsibility for and control of all psychological records relating to users of the licensee’s psychological services and of the users of the psychological services rendered by any person under the supervision of the licensed psychologist. (3) Except as provided in subsection (4) of this rule, complete psychological records shall be retained by the licensed psychologist for a minimum of 3 years after (a) the completion of planned services or (b) the date of last contact with the user, whichever event occurs later in time. Thereafter, either the complete psychological records or a summary of those psychological records shall be retained for an additional 4 years. (4) A licensed psychologist is not required to retain psychological records if the psychologist’s patients were assigned to the psychologist by a business entity which agrees to maintain and retain the confidentiality of the psychological records consistent with Rules 64B19-19.005 and 64B19-19.006, F.A.C., and subsections (2) and (3) of this rule. Specific Authority 490.004(4), 490.0148 FS. Law Implemented 490.009(2)(s), (q), (u), 490.0148 FS. History–New 8-12-90, Formerly 21U-22.003, Amended 6-14-94, Formerly 61F13-22.003, 59AA-19.003. 64B19-19.004 Disposition of Records Upon Termination or Relocation of Psychological Practice. P a g e | 10 (1) When a licensed psychologist terminates practice or relocates practice and is no longer available to service users in the practice area, the licensed psychologist shall provide notice of such termination or relocation of practice. The licensed psychologist shall cause such notice to be published in the newspaper of greatest circulation in the county from which the licensed psychologist is relocating or, in the case of termination of practice, in each county where the licensed psychologist has practiced. Such notice shall be published weekly for four (4) consecutive weeks. The notice shall contain the date of termination or relocation of practice and an address at which the psychological records of the service users may be obtained by them, their legal representatives, or licensed mental health professionals designated by service users in writing, to receive the service user’s records. (2) The executor, administrator, personal representative or survivor of a deceased licensed psychologist shall ensure the retention of psychological records in existence upon the death of the psychologist for a period of at least two (2) years and two (2) months from the date of the licensed psychologist’s death. Within 1 month of the licensed psychologist’s death, the executor, administrator, personal representative or survivor of the deceased licensed psychologist shall cause notice to be published in the newspaper of greatest general circulation in each county where the licensed psychologist practiced. Such notice shall be published weekly for four (4) consecutive weeks and shall advise of the licensed psychologist’s death. Such notice shall also state the address from which service users, their legal representative, or licensed mental health professionals designated by the service user in writing, may obtain the service user’s psychological records. A copy of such notice shall be mailed to the administrative office of the Board of Psychology. At the conclusion of 24 months from the date of the licensed psychologist’s death, the executor, administrator, personal representative or survivor shall cause a notice to be published in the newspaper of greatest circulation in each county where the deceased psychologist practiced. Such notice shall advise that the psychological records still in the possession or under the control of the executor, administrator, personal representative or survivor will be destroyed on a date specified which may not be any sooner than 1 month from the last day of the last week of the publication of the notice. Such notice shall also be published once a week for four (4) consecutive weeks. Thereafter, on the date specified in the notice, the executor, administrator, personal representative or survivor shall destroy unclaimed psychological records. Specific Authority 456.058, 490.004(4) FS. Law Implemented 456.058 FS. History–New 8-12-90, Formerly 21U-22.004, Amended 6-14-94, Formerly 61F13-22.004, 59AA19.004, Amended 9-18-97. 64B19-19.006 Confidentiality. (1) One of the primary obligations of psychologists is to respect the confidentiality of information entrusted to them by service users. Psychologists may disclose that information only with the written consent of the service user. The only exceptions to this general rule occur in those situations when nondisclosure on the part of the psychologist would violate the law. If there are limits to the maintenance of confidentiality, however, the licensed psychologist shall inform the service user of those limitations. For instance, licensed psychologists in hospital, subacute or nursing home settings should inform service users when the service user’s clinical records will contain psychological information which may be available to others without the service user’s written consent. P a g e | 11 Similar limitations on confidentiality may present themselves in educational, industrial, military or third-party payment situations, and in each of the circumstances mentioned herein or in each similar circumstance, the licensed psychologist must obtain a written statement from the service user which acknowledges the psychologist’s advice in those regards. This rule is particularly applicable to supervisory situations wherein the supervised individual will be sharing confidential information with the supervising psychologist. In that situation, it is incumbent upon the licensed psychologist to secure the written acknowledgement of the service user regarding that breach of confidentiality. (2) In cases where an evaluation is performed upon a person by a psychologist for use by a third party, the psychologist must explain to the person being evaluated the limits of confidentiality in that specific situation, document that such information was explained and understood by the person being evaluated, and obtain written informed consent to all aspects of the testing and evaluative procedures. (3) This rule recognizes that minors and legally incapacitated individuals cannot give informed consent under the law. Psychologists, nonetheless, owe a duty of confidentiality to minor and legally incapacitated service users consistent with the duty imposed by subsection (1). This does not mean that the psychologist may not impart the psychologist’s own evaluation, assessment, analysis, diagnosis, or recommendations regarding the minor or legally incapacitated individual to the service user’s guardian or to any court of law. (4) The licensed psychologist shall maintain the confidentiality of all psychological records in the licensed psychologist’s possession or under the licensed psychologist’s control except as otherwise provided by law or pursuant to written and signed authorization of a service user specifically requesting or authorizing release or disclosure of the service user’s psychological records. (5) The licensed psychologist shall also ensure that no person working for the psychologist, whether as an employee, an independent contractor, or a volunteer violates the confidentiality of the service user. Rulemaking Authority 490.004(4) FS. Law Implemented 456.057, 490.009(1)(u), (v), 490.0147 FS. History–New 8-12-90, Formerly 21U-22.006, 61F13-22.006, Amended 226-96, Formerly 59AA-19.006, Amended 11-23-97.