Ethics Committee Webinar: Access to and Charging for Records

Transcription

1 Ethics Committee Webinar: Access to and Charging for Records OPA Ethics Committee Richard Ashbrook, Terry Imar, Bob Stinson, & Elizabeth Swenson

2 OPA Ethics Committee Five Functions 1. Advance knowledge & competency 2. Educate regarding ethical principles 3. Provide guidance on professional ethics & conduct 4. Advise OPA Board of Directors 5. Interface with Education Committee

3 Consultations for OPA Members OPA members may contact Ethics Committee members for consultations. Telephone inquiries are preferred. Speak hypothetically. Consultations are documented & distributed to committee members without the caller s identifying information. Consultation is limited to ethical matters and are not a substitute for legal advice or a clinical consultation.

4 Disclaimer The advice or opinions given by the committee or its members are their own based upon their experiences and the situation as it is described to them. Therefore, neither the committee nor its members can represent how the Board of Psychology might view or rule upon a particular situation. Consult counsel.

5 Ethical Principles of Psychologists and Code of Conduct 1. Introduction (intent, organization, scope) 2. Preamble (aspires to highest ideals) 3. General Principles (aspirational goals) 4. Ethical Standards

6 Aspirational Principles A. Beneficence & Nonmaleficence B. Fidelity & Responsibility C. Integrity D. Justice E. Respect for People s Rights & Dignity

7 Ethical Standards 1. Resolving Ethical Issues 2. Competence 3. Human Relations 4. Privacy and Confidentiality 5. Advertising and Other Public Statements 6. Record Keeping and Fees 7. Education and Training 8. Research and Publication 9. Assessment 10. Therapy

8 Forensic Resources Specialty Guidelines for Forensic Psychologists Relevant Professional Literature Education and Training

9 A.P.A. Guidelines Record Keeping Guidelines Guidelines for Child Custody Evaluations in Family Law Proceedings Guidelines for Psychological Practice with Girls and Women Guidelines for Psychological Practice with Older Adults Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists Practice Guidelines Regarding Psychologists Involvement in Pharmacological Issues Guidelines for Psychological Evaluations in Child Protection Matters Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline Guidelines for Psychotherapy with Lesbian, Gay, and Bisexual Clients

10 Questions Prudent Practitioners Ask What aspects of APA Ethics Code are relevant? What rules of professional conduct apply? What are the standards of practice? What laws & regulations provide direction? What do my trusted colleagues and Counsel say?

11 Common Malpractice Allegations Failure to Properly Diagnose Failure to Take an Adequate History (and obtain prior records) Failure to Take Adequate Protective Measures (observe, control, supervise, commit, restrain, limit lethal means) Failure to Medicate Properly Early Release of Patient (or insufficient discharge treatment plan or abandonment)

12 Ethics Webinar Vignette

13 The psychologist has been seeing a 10 year old male in therapy for several months. The client was brought to him by his mother, who is concerned about her son's anxiety. The parents divorced a year ago and the child reacted to the divorce with considerable anxiety. His anxiety has increased as time has passed. The client's mother has custody of the client and the child spends alternate weekends with his father.

14 The client says that, whenever he spends time with his father, the father bad-mouths his mother and questions him at length about his mother's activities. This has gotten to the point that the client is reluctant to spend time with his father and becomes increasingly anxious as visitation with his father approaches. The child often complains of having an upset stomach before visitations, even vomiting on occasion.

15 The psychologist recently received a rather angry letter from the client's father, stating that he just became aware that his son was in therapy and demanding that the psychologist send him a copy of the client's record. The psychologist is reluctant to do this, since the record contains statements by the client that are critical of his father and the psychologist is concerned that the father might berate the child because of this.

16 After some thought, the psychologist wrote a reply to the father, stating that the charge for sending a copy of the record would be $27.40, payable in advance. The father called the psychologist, saying that it is outrageous that the psychologist would try to charge him for his own son's record. He threatened to complain to the Board of Psychology if the psychologist doesn't send him the record immediately and without charge.

17 The psychologist keeps psychotherapy notes separately from the client's medical record. He wonders if he can send only the client's medical record to the father, while keeping silent about the psychotherapy notes.

18 What are the ethical considerations relevant to this case?

19 Question 1 Is the psychologist required to provide the father with a copy of the client's record?

20 APA Ethics Code Standard 4.05 Disclosures (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient or another legally authorized person on behalf of the client/patient unless prohibited by law. (b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.

21 APA Ethics Code Standard 3.04 Avoiding Harm Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.

22 ORC Sec (B) A patient, a patient's personal representative or an authorized person who wishes to examine or obtain a copy of part or all of a medical record shall submit to the health care provider a written request signed by the patient, personal representative, or authorized person dated not more than one year before the date on which it is submitted. The request shall indicate whether the copy is to be sent to the requestor, physician or chiropractor, or held for the requestor at the office of the health care provider. Within a reasonable time after receiving a request that meets the requirements of this division and includes sufficient information to identify the record requested, a health care provider that has the patient's medical records shall permit the patient to examine the record during regular business hours without charge or, on request, shall provide a copy of the record in accordance with section of the Revised Code, except that if a physician or chiropractor who has treated the patient determines for clearly stated treatment reasons that disclosure of the requested record is likely to have an adverse effect on the patient, the health care provider shall provide the record to a physician or chiropractor designated by the patient. The health care provider shall take reasonable steps to establish the identity of the person making the request to examine or obtain a copy of the patient's record.

23 ORC Sec (C) If a health care provider fails to furnish a medical record as required by division (B) of this section, the patient, personal representative, or authorized person who requested the record may bring a civil action to enforce the patient's right of access to the record.

24 ORC Sec (H)(1) Subject to section and division (F) of section of the Revised Code, a parent of a child who is not the residential parent of the child is entitled to access, under the same terms and conditions under which access is provided to the residential parent, to any record that is related to the child and to which the residential parent of the child legally is provided access, unless the court determines that it would not be in the best interest of the child for the parent who is not the residential parent to have access to the records under those same terms and conditions. If the court determines that the parent of a child who is not the residential parent should not have access to records related to the child under the same terms and conditions as provided for the residential parent, the court shall specify the terms and conditions under which the parent who is not the residential parent is to have access to those records, shall enter its written findings of facts and opinion in the journal, and shall issue an order containing the terms and conditions to both the residential parent and the parent of the child who is not the residential parent. The court shall include in every order issued pursuant to this division notice that any keeper of a record who knowingly fails to comply with the order or division (H) of this section is in contempt of court.

25 Question 2 Is the psychologist justified in withholding the client's record from his father unless the father pays? Is the charge for the record reasonable?

26 APA Ethics Code Standard 6.03 Withholding Records for Nonpayment Psychologists may not withhold records under their control that are requested and needed for a client's/patient's emergency treatment solely because payment has not been received.

27 ORC Sec (B) Except as provided in divisions (C) and (E) of this section, a health care provider or medical records company that receives a request for a copy of a patient's medical record may charge not more than the amounts set forth in this section. Total costs for copies and all services related to those copies shall not exceed the sum of the following:(1) An initial fee of fifteen dollars, which shall compensate for the records search;(2) With respect to data recorded on paper, the following amounts:(a) One dollar per page for the first ten pages;(b) Fifty cents per page for pages eleven through fifty;(c) Twenty cents per page for pages fiftyone and higher.(3) With respect to data recorded other than on paper, the actual cost of making the copy;(4) The actual cost of any related postage incurred by the health care provider or medical records company.(c) A health care provider or medical records company shall provide one copy without charge to the following:(1) The bureau of workers' compensation, in accordance with Chapters and of the Revised Code and the rules adopted under those chapters;(2) The industrial commission, in accordance with Chapters and of the Revised Code and the rules adopted under those chapters;(3) The department of job and family services, in accordance with of the Revised Code and the rules adopted under those chapters;(4) The attorney general, in accordance with sections to of the Revised Code and any rules that may be adopted under those sections;(5) A patient or patient's representative if the medical record is necessary to support a claim under Title II or Title XVI of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A. 401 and 1381, as amended, and the request is accompanied by documentation that a claim has been filed.

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29 Question 3 Is the psychologist justified in providing the father with only the client's medical record and not the psychotherapy notes?

30 APA Ethics Code Standard 4.05 Disclosures (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient or another legally authorized person on behalf of the client/patient unless prohibited by law. (b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.

31 ORC Sec (A)(8) "Medical record" means data in any form that pertains to a patient's medical history, diagnosis, prognosis, or medical condition and that is generated and maintained by a health care provider in the process of the patient's health care treatment.