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Section 2

Question 2 | Ethics CEUs Test | Table of Contents | Confidentiality CEU Courses
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In the last section, we discussed a basic three-point HIPAA compliance checklist so that you may be in full compliance with HIPAA regulations and avoid crossing any ethical boundaries.  These three points of a  HIPAA compliance checklist included:  Notice of Privacy Practices; Business Associates Agreement; and Correspondence Confidentiality Statements.

In this section, we will review the ways in which HIPAA guidelines affect note-taking during client sessions.  Ethical boundaries created by HIPAA regarding note-taking include the following three areas  categorization of notes; instances of exemption; and exclusions.

3 HIPAA Guidelines for Note-Taking

♦ Guideline #1 - Categorization of Notes
The first ethical boundary created by HIPAA regarding note-taking during a client session was the categorization of your notes.  According to HIPAA regulations, "notes" include detailed notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session. 

These records must be separated from other documentations and used only by the therapist.  Therefore, any notes, whether audio recorded or handwritten, cannot be included in documentation released to the public without the consent of the client and this authorization cannot be compelled for payment, underwriting, or plan enrollment. 

Juliet, age 35, was diagnosed with depression resulting from the physical and mental abuse inflicted on her by her father.  She stated, "He was so controlling, he had to have his way all the time!"  During my treatment of Juliet, her father came to my office unannounced several times, trying to pressure me into revealing Juliet’s conversation about him.  He stated, "That bitch is lying and you have to let me see the records because I  am her father."  I explained to him that he is not her legal guardian.  I stated that the law recognized the confidentiality of this relationship and that there was nothing more he could do. 

Think of your Juliet.  Does he or she have a family member that has no right to medical records?

♦ Guideline #2 - Instances of Exemption
The second ethical boundary created by HIPAA regarding note-taking during a client session is instances of exemption from confidentiality.  There are several situations in which the clinician does not need the authorization of the client for disclosure.  The first of these is for the defense of a malpractice suit. 

In this case, the client-therapist relationship has effectively dissolved, both structurally and emotionally.  For the good of the other clients, the clinician is allowed to defend him or herself with the usage of notes from the prosecuting client.  The second instance is when a clinician is satisfying documentation requirements of a licensing authority.  Ideally, the disclosure of notes in this case does not directly affect the client.  Future employers etc. do not have access to these documentations. 

Paul, age 31, sued one of my colleagues, John, for malpractice.  Paul maintained that John had not paid close attention to his case, and stated that John never did any real analysis of his case during sessions.  John had thirty other clients to attend to, and his suspension would have been disastrous for those other thirty clients. 

When the case was brought to trial, John brought forth his notes that he took during his sessions with Paul.  These notes were dated and extensive, including whole phrases Paul admits to saying, proving that Jhn did in fact do extensive analysis during Paul's sessions.  With this evidence, John was not convicted of malpractice and was free to treat his other thirty clients. 

Do you think this was a justified instance?

♦ Guideline #3 - Four Exclusions
In addition to the categorization of notes and instances of exemption, the third ethical boundary created by HIPAA regarding note-taking during a client session is exclusions. 

According to HIPAA guidelines, exclusions from note confidentiality include:
(1) Medication prescription and monitoring;
(2) Counseling session start and stop times;
(3) Modalities and frequencies of treatment furnished; and
(4) Results of clinical tests. 

All these exclusions come under the title of progress note.  The progress note is the document that a clinician must include in the client’s medical record after each encounter.  This note must in turn also include diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. 

Cynthia, age 31, was diagnosed with bipolar disorder and was one of my clients when the new regulations came into effect.  Because Cynthia was a highly difficult client to document due to constant mood swings, the task of consistently writing a progress note seemed daunting, especially when dealing with sensitive clients such as Cynthia who could be negatively affected by a distracted clinician writing notes. 

Have you ever felt overwhelmed by the new guidelines that have been inundating the mental health profession?

♦ Technique:  Gillman HIPAA Progress Note Format
To help myself cope with the pressures of the HIPAA guidelines, I found the Gillman HIPAA Progress Note Format helpful in organizing the progress note.  As you read these eleven points, use this as a checklist, according to your agency’s procedures.

11 Steps of the Progress Note Format

The format for the progress note includes the following:
 1. Counseling session start and stop time.
 2. Modalities of treatment furnished.
 3. Frequency of modalities furnished.
 4 Medication prescription and monitoring.
 5. Results of clinical tests.
 6. Summary – Symptoms.
 7. Summary – Functional Status.
 8. Summary – Progress.
 9. Summary – Diagnosis.
 10. Summary – Treatment Plan.
 11. Summary – Prognosis.

Still seem slightly jumbled? 

The Gillman HIPAA Progress Note Format also includes specific questions to ask prior to a session.  These questions are designed to aid the clinician in including all the necessary information in the progress note.

6 Specific Questions to Ask Prior to a Session
These six questions are reproduced at the end of your manual and include the following:
1. What symptoms did my patient bring to me today?
2. What is the impact on their functional status?
3. What progress did the patient make since the last session?
4. How does this change my diagnostic thinking?
5. What is my treatment plan and recommendation for the next
treatment period?
6. What is the prognosis for this period of time?

In this section, we reviewed the ways in which HIPAA guidelines affect psychiatrists.  These effects included:  categorization of notes; instances of exemption; and exclusions.

In the next section, we will examine three ethical boundaries created by HIPAA related to the client’s informed consent.  These three concepts related to the client’s informed consent include:  HIPAA requirements; readability; and comprehension.

Peer-Reviewed Journal Article References:
Christie, C. D., Bemister, T. B., & Dobson, K. S. (2015). Record-informing and note-taking: A continuation of the debate about their impact on client perceptions. Canadian Psychology/Psychologie canadienne, 56(1), 118–122.

Gustafson, K. E., & McNamara, J. R. (1987). Confidentiality with minor clients: Issues and guidelines for therapists. Professional Psychology: Research and Practice, 18(5), 503–508.

Letzring, T. D., & Snow, M. S. (2011). Mental health practitioners and HIPAA. International Journal of Play Therapy, 20(3), 153–164. 

Lustgarten, S. D., & Elhai, J. D. (2018). Technology use in mental health practice and research: Legal and ethical risks. Clinical Psychology: Science and Practice, 25(2), Article e12234.

Lustgarten, S. D., Sinnard, M. T., & Elchert, D. M. (2020). Data after death: Record keeping considerations for unexpected departures of mental health providers. Professional Psychology: Research and Practice, 51(4), 362–370.

McClellan, M. J., Florell, D., Palmer, J., & Kidder, C. (2020). Clinician telehealth attitudes in a rural community mental health center setting. Journal of Rural Mental Health, 44(1), 62–73.

Walfish, S., & Ducey, B. B. (2007). Readability level of Health Insurance Portability and Accountability Act notices of privacy practices used by psychologists in clinical practice. Professional Psychology: Research and Practice, 38(2), 203–207.

What are three ways in which HIPAA guidelines affect psychiatrists? To select and enter your answer go to Ethics CEUs Test.

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