1	Patient Confidentiality & Documentation Clinical and Legal Issues for Ethical Documentation By: Michael G. Conner, Psy.D
2	Presenter Background Community Crisis Residential Psychiatric Inpatient Medical Emergency Room Outpatient Mental Health (HMO) Primary Medical Care Health Education Private Group Practice Private Practice Airline Critical Incidents 911 Police Department Educational Consulting Internet Mental Health
3	The Purpose of Documentation Historical record for subsequent care Source of “treatment orders”, “treatment directives” and “treatment activities” Record of the quality of care Consultation & support Supervision & monitoring progress Training Involving the client
4	Documentation Requirements Are Different Across Professions Licensed Child, Marriage & Family Therapists Professional Counselors Clinical Social Workers Psychologists Psychiatrists Psychiatric Nurse Practitioners Non-Licensed School psychologists Counselors Therapists Third party review Utilization review Quality assurance
5	Documentation Requirements Are Different Across Practices Specialized Addictions Sex Offenders Crisis Intervention High Risk Dangerousness Suicide & Self-Harm Acute & Emergent Borderline & Narcissism Narrow Practice Focus Pain management Stress & Symptom Reduction Broad Practice Psychotherapy Hypnosis Uncomplicated Health education
6	Examine Your Resistance No time or place Unclear purpose No clear standard of care and behavior Not sure what to document Don’t want to make a mistake (liability, complaints…) Threatens confidence and self-esteem
7	Arguments For Documentation Articulation and reflection can enhance skill and quality of service Effective liability and risk management Courts and licensing boards view failure to document as a failure to provide service
8	Arguments Against Documentation Difficulty providing full informed consent Insurance Waiver Civil Actions (Defendant or Plaintiff) Criminal prosecution and defense Inability to control subsequent breaches Creates an artificial quality and pressure Emphasis on behavior and not the relationship Diminished dignity to the process and relationship
9	Laws Federal Law Statutory Law Case Law Administrative Rules
10	Standards of Care & Behavior “Mandatory” behavior is established by federal, statutory law and case law as well as administrative rules. Standards of care and behavior are established by professionals Standards of care and behavior in a court are established by an expert The standard of care and behavior for an expert or specialist is higher than a general practitioner.
11	Law & Confidentiality Non-Disclosure. Cannot release unless there is an exception, limit reached or waived Privilege. Cannot reveal information in court without waiver or due process Duty. Must take steps to warn or protect that may include a limited breach of confidentiality
12	Clinical Effectiveness Services from any school of thought can be documented in a measurable manner and behavioral terms Clinical effectiveness is defined as the alleviation of mental health impairments that may be affecting individual functioning in a reasonable period of time.
13	Medical Necessity A term used primarily to exclude problems from treatment Definition. The need for professional services due to the existence of a mental disorder that results in a significant functional impairment Operational Definition. A DSM or ISCD diagnosis that is supported by functional impairments, behavioral evidence or physical evidence.
14	Functional Impairments Problems in daily living including social, occupational, academic, marital…. Behavior is the basis of documenting problems Behaviors are thoughts, emotions, cognitions, perceptions, events descriptions
15	Malpractice 4 D’s (Dereliction of Duty Directly Led to Damage) The practitioner owed a duty to the client based on an established therapeutic relationship The quality of care fell below the expected standard of practice The patient suffered or caused harm Practitioner dereliction of duty was the direct cause of harm or injury
16	Elements Of A Record Informed consent Contract Screening/Assessment Treatment Plan Progress Notes Termination Summary Ancillary Information
17	Detail & Extensiveness of Documentation 3 Approaches Document extensively and in great detail Document only that which is relevant to a Diagnosis Treatment Goals Document as little as possible
18	Informed Consent Treatment is optional and not required Treatment methods Used Time commitments Risk of life changes Limits of confidentiality Fees and method of payment Record keeping Qualifications Consent of minors How you document Access to files by others
19	Screening, Assessment, Treatment Plan & Progress Notes Your assessment of your screening should generate a treatment plan and a diagnosis Progress notes are based on the treatment plan and diagnosis Progress notes document further diagnostic information and reflect progress toward the goals of the treatment plan
20	Diagnosis (Dx) When must a diagnosis be valid? Valid Diagnosis. After an intake, interviews or initial sessions that is timely and sufficiently comprehensive as well as consistent with a reasonable standard of care and behavior Valid Working Diagnosis (DSM Provisional or Reason for Visit). When a “useful” diagnosis can be made based on data in accordance with a reasonable standard of care and behavior.
21	Diagnosis (Dx) When is a diagnosis potentially negligent? Experts would all agree on a different diagnosis The diagnosis could have been accurate or certain at the time the assessment and treatment plan was generated A reasonable standard of care and behavior was not followed
22	Treatment Plan (TxPlan) The TxPlan is based on your assessment of your screening Intake Interview Initial sessions Most TxPlans can be generated in 1 to 3 sessions (1 to 3 hours) The TxPlan and changes in the TxPlan can be documented in the progress notes
23	Elements Of A Treatment Plan Diagnosis Patient identified and described problems Practitioner identified and described problems Treatment modality Treatment activities Frequency and duration of treatment Anticipated time frame of treatment Measures of progress Criteria for completion
24	Treatment (Tx) Modality Individual Group Family Couples Phone Con-joint Etc… Therapeutic Activities Interpersonal therapy Hypnosis & EMDR Education Stress inoculation Escape & avoidance prevention Counseling & Guidance
25	Measures of Progress Self-assessment Opinion of others Assessment by others Subjective Units of Distress (SUD’s) Improvement (SUIs) Progress (SUPs) Goal attainment Report of symptom (Sx) increase or reduction Task accomplished Questionnaire Standardized Non-Standardized
26	Documentation & Evidence Absence of evidence is not evidence of absence Documentation of what happened is evidence that it happened Documentation of what did not happen is evidence that is did not happen (up to a point) Absence of documentation is not evidence that it did not happen unless you routinely document at the level of information
27	Soap Progress Notes S.O.A.P. Subjective Objective Assessment Plan Based on a medical model where patient reports symptoms, there are physical findings, a physician’s diagnosis and a plan (“Orders”)
28	SOAP Example Jim Doe Aug 30, 01 Ind 1430 to 1550 S/O: “I’m doing better but I was really ticked at my wife all week”. Reports more arguments but fewer explosive episodes. SUD=5. Discussed family of origin for patterns similar to this. Examined automatic thoughts. Taught thought detection and thought selection. Restless and interrupted me through out session. A: Pt remaining focused on Tx Plan. Improvement over last session SUD=2. Errors in thinking contribute to low frustration tolerance, over reaction and anger. P: Remain on Tx plan issues with wife.
29	Generic Progress Notes Generic Description of contact (when, who…) Modality Treatment activities Progress or lack of progress Observable data (related to continued need or prognosis) Significant focus or events in therapy Based on a model of psychotherapy services
30	Generic Example Jim Doe Aug 30, 01 Indiv office 1430 to 1550 Cognitive therapy examining automatic self defeating thoughts. Education – Taught and practiced thought detection and thought selection. Client successfully examined, selected and developed alternatives based on healthy alternative thoughts. Increased confidence evidenced by relaxation responses and self-assessment Focused on communication and interaction patterns with wife and children that lead to conflict and increased anger. Examined similar patterns in family of origin.
31	Problem Oriented Progress Notes Problem Oriented Data (what is said, observed or happens) Problems (Issues reported, identified, dealt with) Treatment (Modality and activities) Evaluation (progress and evidence of progress) Follow-up (patient home work and further Tx) A charting procedure that is favored in the medical field.
32	Problem Oriented Progress Note Jim Doe Aug 30, 01 Indiv office 1430 to 1550 Data: “I’m doing better but I was really ticked at my wife all week”. Reports more arguments but fewer explosive episodes. Discussed family of origin for patterns similar to this. Pt. Problems: Focused on communication and interaction patterns with wife and children that lead to conflict and increased anger. Examined automatic self defeating thoughts. Treatment: Cognitive therapy. Education – Taught thought detection and thought selection. Evaluation: Self assessment SUD=5 and 2 at end of session. Client successfully examined, selected and developed alternatives based on healthy alternative thoughts. Increased confidence evidenced by relaxation responses and self-assessment Follow-up: Remain on Tx plan issues with wife. Practice what he learned outside Tx. Review progress next session
33	Documentation Include Directives of supervisors & superiors impacting Tx Content pertinent to Tx Consultations Evidence of failure to Comply or take action Follow through Pt complaints about Tx Possibly include Significant phone contacts Late, failed or canceled appointment Supervisors signature for students
34	Documentation Exclude Information that can easily be misinterpreted Information that has no impact or is irrelevant to Dx or Tx Past criminal behavior if not relevant to Tx or risk Sexual behavior if not relevant to Tx or risk Your personal comments, opinions or process notes Remarks about 3^rd parties unless important to Tx Client writings and journals
35	Groups, Families & Couples Problems Confidentiality is threatened by co-participants Divorces Child custody Law suites Blended records are difficult to separate Requests for records Court Orders Testimony in court
36	Groups, Families & Couples Recommendations Keep a separate file if you answer yes to any of the following Would I want a member of a group, family or couple to read this? Can I predict or be certain what will happen to these records? Exclude Names of people not treated Information that would allow a member to be identified
37	Self-Harm, Suicide, Destructiveness and Violence There is a wide gap between the laws, ethics, standards of care and behavior and ethical and moral imperatives. Informed consent based on a professional ethic and personal moral position is a private practice option since a treatment relationship is based on a case by case agreement that is not a “public right.” Informed consent based on public or organizational policy may not allow for a professional and personal position since a contractual responsibility and public right to services already exists.
38	Three Positions Individual Position: The therapist may breach confidentiality as reasonably necessary to protect property, the health and life of an individual or the safety of society. (personal conscience) Professional Position: The therapist may breach confidentiality as reasonably necessary in accordance with State law and professional standards of care and behavior. (“social-professional responsibility”) Organizational and Public Servant Position: The therapist must follow explicit and implicit policy and procedures. (social-organizational responsibility)
39	Danger To Self Or Self-Harm Direct statement of intent or consideration Self-harming or suicidal thought content, process & behavior Hx of previous attempts Contributing risk factors Purpose Family Hx of attempts Therapeutic intervention to reduce risk No-harm agreement Acute risk plan Follow-up appointments Cooperation & reaction to plan Consultation & plan Contacts to prevent
40	Risk Of Violence Or Destructiveness Direct statement of intent or consideration Aggressive and violent thought content, process & behavior Hx of previous violence Contributing risk factors Purpose Therapeutic intervention to reduce risk No-harm agreement Acute risk plan Follow-up appointments Cooperation and reaction to plan Consultation plan Consultation Contacts to prevent
41	Suicide Risk Duty Document attempts to involve appropriate others designated by the client to support, monitor and reduce the risk Document any failure or refusal to take steps to reduce the risk Release only that information necessary to protect the client and others
42	Violence Risk Duty Laws and standards of practice in Oregon are not well established. Attempt to warn the victim with the client present (if safe) Document that you attempted to contact the victim at regular intervals Give the warning to necessary others if actions fail to protect the victim Release only that information necessary to protect the victim and the client Cannot “hold” or may not be able to admit a patient unless there is a causal disorder that requires treatment Take some reasonable action that could protect victims.
43	Termination Note Is essentially a progress note. Should be a separate page that could be sent rather than entire record Involves Treatment dates Modalities Treatment Activities Diagnosis or Problem Tx Plan Overview Progress, problems, accomplished Prognosis Follow-up
44	Patient Information Disclosures Under HIPPA Applies to all information whether oral, paper or electronic Applies to Private Practitioners, Hospitals, Health Insurer, Health Plans, and business associated Does not apply to Health Insurance or Workers Compensation companies
45	Release of Information Under HIPPA Professionals must obtain a release from each patient for all communication with 3^rd party payers One release may be used for all routine disclosures (treatment, payment, health plan operations) Minimum necessary medical information can be disclosed to another provider for purposes of treatment
46	Psychotherapy Notes Under HIPPA So far, “Psychotherapy Notes” are not considered part of the patient’s chart/health record for purposes of routine disclosure (logical interpretation) Psychotherapists can release the following (read minimum necessary) without special authorization from the patient because they document only the analysis of content and conversations. The following are not considered psychotherapy notes (read minimum necessary). Diagnosis, functional status, Tx plan, symptoms, prognosis, progress, medical prescription & monitoring, session start and stop times, modality, frequency of Tx, results of clinical tests… Content, conversations and everything else are psychotherapy notes (read more than minimum necessary).
47	Information Released to 3^rd Party Payer Under HIPPA Screening/Assessment Symptoms: (DSM glossary of terms) Results of clinical tests: (Standardized questionnaires/tests) Diagnosis: DSM , &/or Reason for coming Tx Plan Session start & stop times: (log of appointments) Frequency of Tx: times per week , month and duration Modality: (individual, group, couples, family, phone, etc..) Tx Activity: (process, techniques, etc..) Medical prescription & monitoring: (Rx, evaluations, re-evaluations) Progress: routine, nominal improvement Prognosis: (Poor, fair, good, excellent, guarded)
48	Information Released to 3^rd Party Payer Under HIPPA - Example Screening/Assessment Symptoms: insomnia, loss of appetite, low energy, loss of usual interest, agitation, low self-esteem, guilt, worry Results of clinical tests: Depression, internalizing, severe Functional Status: DSM Axis IV GAF 60 (current) Diagnosis: DSM Axis I 296.2, Axis II No diagnosis Axis III No reported problems Tx Plan Session start & stop times: (see log of appointments) Frequency of Tx: one appointment weekly, 12 sessions, re-evaluate monthly Modality: Individual and referral to depression education class Tx Activity: Interpersonal & health education Medical prescription & monitoring: Medication evaluation if no progress by 8^th session Progress: routine, nominal improvement Prognosis: Good with continued treatment