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Making appropriate arrangements for vacation
The following is a de-identified composite of calls made to the ACA Risk Management Helpline, operated by Anne Marie “Nancy” Wheeler, J.D., an attorney licensed in Maryland and the District of Columbia. This information is presented for educational purposes. For specific legal advice, please consult your own local attorney.
Question: I’m a new solo practitioner and licensed professional counselor. I’ll be leaving soon to attend a professional conference and will stay in that city afterwards for a week’s vacation. Must I provide coverage during the 10 days I’ll be gone or can I just check messages while I’m away? Also, if I do arrange for coverage, may I tell my covering provider about one of my clients who has been in crisis lately?
Answer: First, you want to ensure that you are meeting your ethical obligation under the ACA Code of Ethics, Standard A.11.a. Counselors are expected to refrain from abandoning or neglecting clients. They must also make appropriate arrangements for the continuation of treatment, when necessary, during interruptions, including vacations and absence for continuing education. As a counselor, you have some flexibility regarding how you interpret this obligation but there are several considerations to keep in mind.
From a legal standpoint, you must also meet the standard of care in your area for arranging coverage. If your client were to be harmed due to a lack of coverage, you could be sued for malpractice. In such a lawsuit, both sides would likely introduce testimony of an expert witness (another counselor or similarly licensed mental health professional) that would support or contradict the provisions you made when you left town.
Some counselors leave a message on their telephones to direct clients to the “nearest emergency room” when they are away. While this isn’t inherently “bad”, you should ask yourself whether this, alone, is enough in all circumstances. As part of good treatment practice, you may wish to arrange for another therapist to cover your practice while you are away; you could develop a mutual relationship with another counselor so that you could cover that counselor’s practice while he or she is away. You should also notify your clients before you leave town and provide coverage information through your informed consent process.
Another factor which could lead to liability against you relates to your contractual obligations. For example, many managed care contracts required their providers to be available or provide coverage 24 hours/day, 7 days per week. Merely leaving a message on the answering machine would likely not comply with your managed care contract mandates. You may wish to review any managed care contracts you have entered into (and the provider manuals which are frequently incorporated by reference into the contracts) to determine whether you have assumed any specific coverage obligations by contract. If one of your patients is harmed by the lack of coverage, there could be civil liability based on both negligence and breach of contract.
You also asked about discussing a client at risk with your covering provider. This is generally an acceptable practice, in order to minimize harm to your client. Although HIPAA typically permits discussions between health care providers, it would be advisable to inform your clients who your covering providers are and request authorization to speak with them about your treatment. State confidentiality laws differ, but they will outweigh HIPAA’s privacy provisions if they are more protective of a client’s privacy. Although it is rare, a client may know your covering provider and might not want information shared with that person. Being aware of this in advance could help you to provide for alternative appropriate emergency coverage while you are away.
Printed with permission from the American Counseling Association (counseling.org)