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Requests to Release Records
The following is a de-identified composite of calls made to the ACA’s 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 am a licensed professional counselor in private practice and have recently been getting requests for client records from multiple sources. Can you provide me with guidance on handling requests for client records?
Answer: Yes; this is a very important legal, ethical and risk management concern. The main issues to keep in mind are that you want to protect your client’s confidentiality, be compliant with federal HIPAA privacy requirements and uphold counselor-client privilege if the request is made in the context of a legal proceeding. First, ascertain who is making the request. If the client is requesting her own records, she usually has the right under state law and federal HIPAA law, as well as the ACA Code of Ethics, to access a copy of her own records. You should ask your client to put the request for records in writing. If you believe there is a strong reason for denying direct client access to the records, seek legal and ethics advice to see if there is an exception that applies in a particular situation.
Requests for records may also come from various other persons. You might receive a request for records from a psychiatrist who is doing medication management or another health care provider serving your client. Although HIPAA does allow some sharing of protected health information among providers, it is typically a good practice to require written client authorization and may be required under some state laws. If there is an emergency situation (e.g., your client is missing and left a suicide note behind), it may be necessary to share limited information with the other health care provider, or even the police, in order to save the client’s life.
If you keep HIPAA “psychotherapy notes,” these should be separated from the rest of the record. A specific release of information from the client must be obtained in order to release these notes. Some states have similar protections for “personal notes.”
You may also receive requests for records from a client’s school, employer, life or health insurance company, or a government agency conducting a security clearance. The key is to obtain the client’s written authorization. It should be recently dated and, whenever possible, you should verify the request directly with the client. If you are counseling a couple, you may need authorization of both clients. Additionally, if you have engaged in substance abuse counseling, you may need a specific authorization that complies with federal law.
You might also receive a request for records in the context of a legal proceeding. You want to protect your client’s confidential communications – which are typically protected by counselor-client “privilege” laws – when a lawsuit is involved. You may also be served with a subpoena to produce client records and testify. When this happens, you may wish to contact your own attorney as well as the risk management service available to insureds who are also members of the American Counseling Association. Typically, the client’s own attorney will help the client decide whether to sign an authorization to release information (thereby waiving privilege). The client’s attorney may be willing to file an appropriate motion, which would lead to a court order from a judge on whether the privilege applies in the particular case.
For a more comprehensive treatment of confidentiality, privilege, privacy and records issues (including electronic records and records of minors), you may wish to read The Counselor and the Law (Wheeler and Bertram, 6th ed.) which will be available through the American Counseling Association in 2012.
This assumes the counselor is a “covered entity” under HIPAA.
2005 ACA Code of Ethics, Standard B.6.d.
HIPAA psychotherapy notes are defined as “notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private counseling session that are separated from the rest of the individual’s record.” 45 C.F.R. § 164.501.
See 42 C.F.R. Part 2.
Printed with permission from the American Counseling Association (counseling.org)