By: Christopher R. Barbrack, Esq.
November 1, 2016
I prepared this article for psychologists. In discussing client records I focus on two points when client file issues tend to crop up: when you hire on to work in a Practice and when you leave the Practice for whatever reason. My intended audience is comprised of psychologists who are considering joining a private practice, or hiring a licensee for a private practice, or leaving a private practice or selling a private practice. In each of these events, there are multiple issues pertaining to client records that must be resolved. Once these issues are resolved, the resolution should be reduced to writing and incorporated in an Employment Agreement. Perhaps failure to satisfy this condition is not a deal breaker for the reader but it would be for me. A good Employment Agreement has advantages for employer and employee/contractor. Not having an Employment Agreement results in perilous circumstances for both sides. I can see no down side to using employment agreements and the only impediments to using one are lack of knowledge or laziness.
The issue of client records was a recent focus for me when I represented a health practitioner in the sale of her practice to another, larger entity. During the negotiation, I was bothered by the language that was used in the transaction which seemed designed to disguise the possibility that my client’s clients were being sold as part of the deal. I could never agree to this. Part of my concern was crystalized in my question, “what is it that you are selling?” My client struggled with this question for several weeks. She consulted with her licensing Board. She spent many hours working on and much anxiety to rectify this situation. All of this could have been avoided by a Statement of Purpose or Organizational Rules and Regulations (including buy-sell agreements and records retention and ownership policy statement as part of an employment agreement). The reader should think how s/he would answer this question.
Client records are a core part of any clinical practice conducted by licensed psychologists. If done properly, records management is an effective way to anticipate, reduce or eliminate most or all future problems related to records. In this paper, I examine records issues from legal perspectives based on laws and professional authorities.
Rules governing psychologists are derived from state laws. Thus, we have 50 state laws that pertain to records. I believe 80% of these state laws agree with one another. Since these state laws are preeminent one cannot prudently assume that the laws in his/her state are in accord with aspirational standards like those espoused by organizations like the American Psychological Association. I always advise at the outset of a consultation, check the State Law or Regulation on this issue as well as any other pertinent legal authorities. The reader should do the same. See Kinsella v. Kinsella 150 NJ 276 (App. Div. 1997) for some of the finer nuances of the issue of access to client records. The appearance on the scene of HIPAA has brought some advantages but some added regulatory burdens. Practitioners must be very familiar with provisions bearing on client records, must be very familiar with HIPAA.
I have chosen to focus on the aspirations of APA to find out what to do when joining or leaving a private practice about the records of past and current clients.
I think the simplest way to prepare ahead of time would be to build a file on “RECORDS” for your professional record. Add a copy of your state licensing laws, forms, specimen agreements, templates for communicating with clients etc.
I have based the following on sources that are written by and for psychologists.
In the column, “Practice Update” in the Monitor (February 26, 2015), the authors present an article titled “Handling patient record retention and access when leaving a practice”. The article offers recommendations about management of client records “when no written agreement exists”. Yet the opening of the second paragraph states “Typically a psychologist who joins a practice as an employee or contractor signs an agreement at the start that defines the roles and rights of each party…the agreement should clearly state who will retain and have access to the records of current and former (sic) patients”.
The idea that the above circumstance is typical is sharply at odds with my experience where such agreements exist is rare and the source of many problems.
The remainder of the article will convince most readers to insist that such agreements be prepared and signed. But before taking on this issue the person arguing for possession of the records (client) must consider the following:
In recent years, I have been amazed by how many practices are conceived and conducted without any documentation or with pieces of paper that one would have to stretch to call a document; absent are statements of purpose and policy and employment agreements. Before the beginning and the end of private practice suggest it would be a good idea to remedy this situation without delay.
The authors suggest several good questions for you to determine who owns the record:
- Does the (client) consider him or herself to be a (client) of the individual psychologist or the practice;
- Are the forms handed to the client clear about who is providing services, keeping records and protecting the client’s confidentiality?
- What are the (client’s) wishes at the time of change?
Don’t forget if you leave now or in the future and if the client picks you to continue providing services, you must have a copy of the file.
The Practice in this scenario is obligated to facilitate the client’s movement to your new office or somewhere else (APA Code of Ethics Standard 3.12 see also APA Code Guideline 13).
While it is the client’s right and your right to have a case transferred to you, any victory in this area should be balanced by the potential down sides of “winning”. For example, the transferred client may owe money or expect insurance reimbursements while transferring to your care. Who collects this money? What is done with it? For example, do you give it back to the client. If you had been taking a % age slice from the remittances, what happens to the remaining balance? If the client in the new practice runs up a bill, s/he will have two accounts receivable. If a payment is made in cash or by money order, which account is paid first? Is there a written policy? Imagine if, once the transfer is completed, the client indicates that s/he plans to sue the Practice? What are you expected to do? And so on.
- American Psychological Association (2007). Record Keeping Guidelines. American Psychologist, 62, 993-1004.
- HIPAA fill in
- In house authors. APA Monitor. (2015). Handling patient records retention and access when leaving a practice.
- Kinsella v. Kinsella 150 NJ 276 (App Div. 1997)