On the last track, we reviewed the ways in which HIPAA guidelines affect note taking during a client sessions. Ethical boundaries created by HIPAA regarding note-taking included the following three areas: categorization of notes; instances of exemption; and exclusions.
On this track, 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.
3 Ethical Boundaries Related to Informed Consent
#1 HIPAA Requirements
The first ethical boundary related to informed consent is HIPAA requirements. Although this may feel like a review from track 1, I felt we needed to go over the basics before dealing with such issues as readability.
As you have already encountered many times before, clients must be presented with a Notice of Privacy Practices or NPP's in which he or she is informed of the HIPAA policies regarding client’s rights and the disclosure of information such as medical records. The client must then sign, initial, or otherwise acknowledge that they have received the notice.
In this way, the client’s rights are protected and the practitioner is also not at risk for becoming liable if a client does not agree with the policies later on in the treatment. According to HIPAA, these NPPs or Notices of Privacy Practice must be written in "plain English" in order to facilitate the client’s comprehension. The legislation maintains that "the more understandable the NPP is, the more confidence the public will have in the covered entity's commitment to protecting the privacy of health information."
Therefore, it is highly recommended that NPP’s are written in such a way that most if not all clients will have a sufficient grasp of the concepts laid out with little or no interpretation. This can be difficult when many mental health professonals, such as myself, receive their NPP’s from private companies or professional associations and adapt them to individualize the form with relevant information about the particular practice.
Where do you get your NPP? Do you formulate your own?
The second ethical boundary related to informed consent is the readability of the NPP forms. As stated earlier, HIPAA requires that the NPP forms be written in "plain English" in order to optimize the comprehension of a maximum amount of clients.
Therefore, the level of readability of the majority of NPP’s should correspond to the average reading level of the population, right?
Keeping this in mind, it may not surprise you to know that about fifty percent of the adult population reads at or below a ninth grade reading level. Therefore, for the NPP’s to be comprehended by at least fifty percent of the population, the readability level should correspond to close to a ninth grade reading level. However, according to a study conducted by Steven Walfish and Bryan Ducey, ninety-six percent of States circulate NPPs above a ninth grade reading level.
What does this signify for the client? It signifies that many if not most clients do not initially understand the NPP and most probably do not bother to ask their mental health professional due to embarrassment or apathy. If this is true, many clients are not being adequately informed of their rights which also leaves the mental health professional open to liability should a lawsuit ensue.
Maggie, age 14, was being sexually abused by her father, Joe. She felt she was needing to talk to someone, Maggie told her case worker, Helen about the abuse, but asked her to keep it, as she put, "secret". Helen, according to the law, then filed a court order against the father who was arrested. Terrified to testify in court in front of her hostile parents, Maggie retracted her statement and felt that Helen had betrayed her.
During their sessions, she would cuss, scream, and threaten Helen whenever sexual abuse was brought up. Helen then tried to inform Maggie that what Helen had done was in accordance with law and the informed consent form, signed by her, indicated that Helen was allowed to disclose to the courts about sexual abuse. Maggie screamed, "I didn’t understand a god damn word of that bullshit paper! You told me to sign, so I signed!" Because Maggie had not understood the implications of sharing such delicate information to her case worker, the client-clinician relationship deteriorated.
Can you think of a client who may have not understood the NPP you provided them? Do you need to reevaluate the wording of your own NPP?
#3 Confirming Comprehension
In addition to HIPAA guidelines and readability, the third ethical boundary related to informed consent is confirming comprehension. Because HIPAA requires that NPP’s be written in "plain English" and clearly this is not being accomplished by cookie-cut forms, I have found that discussing rights with the client can help me know that they understand their rights.
For clients with a very low reading level, I read it through with them and summarize the key points so that they can hear from me a more comprehensive interpretation. Sometimes, I make revisions to NPP forms that are much too difficult for most of my clients. These makes it easier to distribute and becomes less taxing on my time. Listen to the following excerpt from an NPP.
"In performing such functions, we may rely on certain business associates to assist us. We will share with our business associates only the minimum amount of personal health information necessary for this purpose."
This particular sentence was long and contained several clauses that may confuse the less educated client. It received a grade level of 12.0. The sentences were then revised to fit a grade level of 6.6. Listen closely and see if you can hear a difference:
In doing so we may rely on certain business associates to help us. We will share your health information with them. But we will only share the minimum amount that is needed."
The second set of sentences used many smaller sentences and less clauses. Also, it replaced more difficult words with less difficult ones. Think of your NPP forms. Could they be rewritten to optimize client comprehension?
On this track, we discussed three concepts related to the client’s informed consent. These three concepts related to the client’s informed consent included: HIPAA requirements; readability; and comprehension.
On the next track, we will examine three concepts that focus on the HIPAA guidelines related to minors. These three concepts related to HIPAA guidelines on minors include: autonomy; State Laws vs. HIPAA; and exemptions.
Ethics CEUs QUESTION 3
What are three concepts related to the client’s informed consent? To select and enter your answer go to .