Beyond HIPAA:Patient Medical Records and Client Confidentiality in Mental Health

Duration: 60 Minutes
Instructor: Mark Brengelman
Webinar Id: 800971


One Attendee
Unlimited Attendees ?


Mental health care is expanding with the Affordable Care Act as providers are needed to meet this growing demand for services. These mental health practitioners are each similarly faced with a variety of high risk, legal situations when they learn the private secrets of their clients. As to medical records privacy, HIPAA has provided the answers as applied to client confidentiality from the context of record-keeping and disclosures. HIPAA fundamentals will first be addressed. Next, an overview of patient medical record keeping, including electronic records, will provide the basic framework to understand the emerging issues in client confidentiality.

Client confidentiality is itself at the core of the therapist-patient relationship. A psychotherapist-patient privilege of confidentiality ranks equally with an attorney-client privilege, a clergyman's religious privilege, and the husband-wife privilege. These privileges govern what information is admissible in a court of law. Despite these strict legal privileges and rights to confidentiality, individual state laws as applicable to each individual mental health profession differ in many ways. In addition, there are many state statue exceptions - both permissive and mandatory - that either allow or require a mental health practitioner to break client confidentiality, even without the client knowing it. What legal and ethical standards exist, the violations of which may trap the unwary clinician? Erase this uncertainty in an overlapping field of mental health law by knowing the intersection of ethics and law for mental health practitioners as applied to client confidentiality. Case law from the courts will be examined in order to provide real-life situations where confidentiality is at issue. In addition, state licensure actions regarding client confidentiality will show liability from the perspective of professional regulation of the health care practitioner.

This continuing education will explore the various state law and ethics standards governing various mental health practitioners. This continuing education will also review the applicable rules of evidence which govern the nondisclosure of confidential communications in any legal proceeding. While these confidences are set in law and ethics, other state laws allow and even mandate disclosure of confidential client information. Explore the common risks that face clinicians in this area of practice and learn practical tips about how to avoid legal liability and threat to the practice of the mental health practitioner with regard to client confidentiality. Faced with a situation where the practitioner may be sued for disclosure, or even sued for nondisclosure, this program allows the mental health care practitioner to avoid sanctions and to defend against legal actions which may result in ruinous practice and career consequences for the mental health practitioner due to issues of client confidentiality. These issues will be explored during part of this continuing education in both a single group and also in small groups using various vignettes and hypothetical situations - but ones that come from real life case studies.

This program offers an objective, thorough review of client confidentiality for mental health practitioners beyond HIPAA, including state laws governing confidentiality, state evidentiary rules, and mandated exceptions under duty to warn and other laws. Because each state and each mental health profession has its own rules, duties, and obligations on client confidentiality apart from record keeping requirements, it is crucial to know the sources of these laws and how they apply.

Why should you Attend: HIPAA has provided a federal right to privacy for patient medical records, including mental health records. However, fearing issues not with federal mandates but with state laws, the practitioner must know and comply with individual state laws and ethics governing the confidentiality of client information in the context of a doctor-patient relationship. HIPAA has standardized office medical record keeping, releases, and professional communications with third parties. But how is client confidentiality addressed beyond mere record keeping? Anxiety between competing interests and privacy mandates is created by the tension with these differing mandates.

Mere compliance with HIPAA creates risk the practitioner is HIPAA-compliant but liable to other confidentiality issues. Not only do state laws and codes of ethics mandate confidentiality, but there are many state law exceptions recognized by HIPAA. The exceptions sometimes allow and sometimes mandate what would otherwise be a confidentiality breach. The sanctity of the doctor-patient relationship then moves to uncertain territory where client confidentiality meets a duty to act, such as, a duty to warn of impending harm or a duty to report suspected child abuse or neglect. Such duties to act do not require the permission of the client, or even the notification to the client, that information about them is being disclosed and reported. This uncertainty exists at a time when the practitioner is most vulnerable - when the practitioner must decide whether and how to act. Doubtful conduct by practitioners will be examined to their detriment by patients suing for malpractice and licensure boards investigating breaches of confidentiality.

This webinar will first review the standardized HIPAA requirements for patient medical records. From that perspective, the webinar will answer the issues presented by expanding to review state laws on patient confidentiality, evidentiary privileges, and exceptions mandated by law. Erase the uncertainty of situations where multiple sources of client confidentiality conflict that govern the secrets held in confidence by mental health practitioners - beyond HIPAA.

Areas Covered in the Session:

  • Identify the basics of HIPAA requirements for patient records
  • Conduct an overview of medical record keeping standards, including electronic records
  • Compare and contrast state statutes and administrative regulations on professional requirements for confidentiality
  • Review the most common exceptions to state statutes and administrative regulations for confidentiality
  • Explore state and federal rules of evidence for legal standards governing the use of client secrets in any legal proceeding
  • Analyze case law from the courts apply standards of client confidentiality
  • Recognize a check-list for successfully handling the client confidentiality dilemmas of the mental health practitioner

Who Will Benefit:
  • Individual Mental Health Practitioners
  • Psychologists
  • Marriage and Family Therapists
  • Professional Counsellors
  • Social Workers
  • Alcohol and Drug Counsellors
  • Other Individual Health Care Practitioners
  • Health Care Attorneys
  • Corporate Counsel in Health Care
  • University Faculty in allied health care
  • Departments of psychology
  • Counselling and social work

Speaker Profile
Mark Brengelman became interested in the law when he graduated with both Bachelor’s and Master’s degrees in Philosophy from Emory University in Atlanta. He then earned a Juris Doctorate from the University of Kentucky College of Law. In 1995, Mark became an Assistant Attorney General and focused in the area of administrative and professional law. He represented multiple boards as General Counsel and Prosecuting Attorney.

Mark retired from state government in the summer of 2012. Also in 2012, he became certified as a hearing officer. He then opened his own law practice to focus on government services and consulting, continuing education, and the representation of health care practitioners before licensure boards and in other professional regulatory matters.

Expanding his health law experience, he was a registered legislative agent (lobbyist) for the Kentucky Association of Pastoral Counselors for the successful passage of Senate Bill 61 passed by the Kentucky General Assembly and signed by the Governor into law on April 9, 2014.

Mark is a frequent participant in continuing education and has been a presenter for over a dozen national and state organizations including the Kentucky Bar Association, the Kentucky Office of the Attorney General, and the National Attorneys General Training and Research Institute.

He is the founding presenter for "Navigating Ethics and Law for Mental Health Professionals," a continuing education training approved by five Kentucky mental health licensure boards, which was presented at Midway College with a licensed clinical social worker in 2013 and 2014.

Since October 2013, Mark has practiced law with the firm of Hazelrigg & Cox, LLP, as partner - an established law firm tracing its history in Frankfort, Kentucky, over one hundred years.

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