Chapter 6- Records and Subpoenas
Records
oRecords are any physical recording made of information related to a counselor’s
professional practice
oClinical case notes: notes that counselors take concerning sessions with clients
oAudio recordings or video recordings of sessions with clients usually are used for
supervision purposes, but they might also be created for clients to review or by
counselors for the purpose of training other counselors.
oUnusual records generated in counseling practices might include records of
clients logging on to computerized information systems, telephone bills
indicating clients’ numbers called, computerized records that clients had used for
parking or building passes, or video recordings of clients entering or leaving a
counseling office.
Client could be compromised is these records were not kept confidential
oPurposes of records
Some of these reasons benefit clients, whereas others benefit counselors
or their employers.
One of the first standards in the ACA Code of Ethics (2014) states that
counselors maintain documentation necessary for rendering professional
services to their clients (ACA, 2014, §A.1.b.).
Purpose of keeping records: to assist you in providing clients with the best
possible counseling services.
Clinical case notes benefit the client because they allow the counselor to
summarize each interaction with the client and record plans for future
sessions.
Good records can assist counselors in helping clients measure their
change and growth
Counselors can use their notes to reference and affirm significant
turning points and successes in their clients’ work.
Continuity of care is a consideration when a client is referred from one
mental health professional to another as well.
Records are used to transfer the information that one health care
provider has about a client’s condition to another health care provider.
Health care records create a history of a client’s diagnosis, treatment, and
recovery.
Later, if counselors are accused of not having provided competent
services, the records serve as evidence of their thinking, and the notes
document any actions taken.
Counselors who work within agencies or other facilities that provide
counseling services often need to document the number of persons who
have been served, the categories of services rendered, and other types of
information
In clinical case notes, only information needed to refresh the counselor’s
memory should be written down.
There is no need to summarize the content of sessions.
Ethical standards related to records
oStandard A.1.b. of the ACA Code of Ethics (ACA, 2014) states that counselors
include in their records “sufficient and timely documentation to facilitate the
delivery and continuity of services.”
oCounselors must strive to keep records in a place that is not accessible to
unauthorized persons.
oCounselors are responsible for ensuring the safety and confidentiality of any
counseling records they create, maintain, transfer, or destroy
oUse the following guidelines to avoid breaching client confidentiality
In your office, be extra careful not to leave records out in the open to
avoid other clients or any other person seeing them. Always put records
away, even if you leave your desk for only a few minutes.
Use a secure password for accessing client records on your computer.
Always close a secure file when you leave the room.
If your computer is networked, be sure your client records are not
accessible to others.
Position your computer so that others in your office cannot see what you
have on your screen.
oStandards B.6.c. and B.6.d. (ACA, 2014) address the issue of informed consent
and require counselors to obtain client permission before they electronically
record or observe sessions.
oStandard B.6.e. (ACA, 2014) alerts us to the fact that we have an ethical
obligation to provide competent clients with access to their records, unless the
records contain information that might be misleading or detrimental to the
clients.
oWhen clients are given access to their counseling records, counselors provide
them with assistance and consultation in interpreting the records (§B.6.f.).
oStandard B.6.g. (ACA, 2014) requires counselors to obtain written permission
from clients to disclose or transfer records to legitimate third parties unless
exceptions to confidentiality exist.
oWhen transferring records, include a cover letter that explains the confidential
nature of any transferred records, mark each page confidential, and include a
statement on the records that the copy of the records is not to be transferred to
any third party.
oStandard B.3.d. (ACA, 2014) requires counselors to obtain authorization from
their clients before disclosing information to third-party payers.
oLegal requirements
legal principles indicate that the contents of the records about a
particular client belong to that client, even though the paper or recording
instrument belongs to someone else (Claim of Gerkin, 1980; People v.
Cohen, 1979).
The common law in the United States does not require that counselors
obtain written permission from clients to give copies of their records to
third parties.
However, many agency policies, state statutes, and federal laws
(such as the Health Insurance Portability and Accountability Act
[HIPAA] and the Family Educational Rights and Privacy Act
[FERPA]) have such written permission requirements.
Counselors should use forms created by the agency in which they work
when any client requests records. If the agency does not have a standard
form, or if a counselor in private practice does not have such a form, the
sample form provided in Appendix C can be used.
Code of Ethics (ACA, 2014), in §A.1.b., implies that ethical counselors
must keep clinical case notes that document services rendered to clients
and client progress.
Counselors do keep various types of records for a number of legally
related reasons.
For example, counselors in private practice must keep
administrative records regarding their expenses and income for
federal and state income tax purposes.
lawyers always advise counselors to carefully document everything they
do so that they can protect themselves if their actions or judgments are
later questioned in a lawsuit.
oConfidentiality and privileged communication requirements
All the points made in Chapter 5 regarding the confidentiality and
privileged communication responsibilities of counselors related to the
privacy of clients apply to records to the same degree as they apply to
oral comments.
Types of records kept by counselors
oThe ACA Code of Ethics (2014) provides only limited information about the types
of records that must be kept; rather, the code allows each counselor to
determine which types of clinical case notes are needed to render professional
services.
oStandards A.1.b., A.1.c., A.2.a., B.6.a., and B.6.g. provide guidance to counselors
regarding the types of records they must keep.
oStandards A.1.b. and B.6.a. both state that counselors maintain documentation
“necessary for rendering professional services.”
Records must “include sufficient and timely documentation to facilitate
the delivery and continuity of services”.
Records must accurately reflect client progress and the services that
counselors have provided to clients.
From these standards, it is clear that counselors are expected to keep
some type of record for all clients and that records should be kept in such
a way that another counselor could take over the care of the client, if
necessary.
oStandard A.1.c. requires that counselors develop counseling plans with their
clients and revise the plans as necessary. Although the code does not specifically
require that such plans be in writing, there could be that expectation.
oStandard A.2.a. states that “Counselors have an obligation to review in writing
and verbally with clients the rights and responsibilities of both counselors and
clients.”
This standard suggests that there is an ethical obligation to have a written
record of informed consent for counseling relationships and that the
document must be reviewed orally with clients.
oStandard B.6.g. requires a written record of permission to transfer records.
oAdministrative records
Administrative records are any types of records that would not be
considered recordings or clinical case notes.
Administrative records include appointment books, billing and payment
accounts, copies of correspondence, signed informed consent
documents, client permission to release information, intake forms, and
other routine papers that are created as a result of providing counseling
services to clients.
In most businesses, records of these types are not considered
confidential.
oRecordings
Agencies often accept practicum or internship students who must record
their sessions with clients for the purposes of clinical supervision.
Counseling sessions could be recorded when counselors want clients to
listen to or view their own behavior or interpersonal interactions during
sessions.
The ACA Code of Ethics (2014) requires that consent of clients be
obtained prior to recording sessions (§B.6.c.).
The consent of clients must be informed in that clients must
understand the reason the recordings are being made and who
will have access to them.
Once the recordings have been used, they must be erased or destroyed.
Clinical case notes
oThese notes sometimes contain specific details clients have told counselors,
counselors’ clinical impressions of clients, and generally very sensitive and
personal information about clients.
oIn the first place, the ACA Code of Ethics (2014) specifically states that ethical
counselors do keep records (§A.1.b.).
oIf counselors were to fail to create these notes, it is likely that they would be
accused of unprofessional practice and probably would be asked to explain how
they could render quality counseling services without taking clinical case notes
oSecond, not having clinical case notes would not keep a counselor from having to
reveal confidential information orally from memory if someone had a legal right
to that information.
oAssume notes will be read
Counselors who make this assumption will be very cautious in deciding
what to include in their notes.
Situations in which others appropriately and legally read counselors’
clinical case notes are discussed in the following sections:
Your clients have a legal right to review the notes and to obtain
copies of them.
Your clients have a legal right to demand that you transfer copies
of those clinical case notes to other professionals, including other
mental health professionals, attorneys, physicians, and even
accountants.
Your clients can subpoena the clinical case notes when they are
involved in litigation.
Other parties can legally subpoena the clinical case notes when
involved in litigation situations involving the client, sometimes
over the client’s objection and even when the records are
privileged, if legal exceptions to privilege exist.
The legal representatives of deceased clients, in most states, have
the same rights to clinical case notes as the clients had when they
were alive.
Clinical case notes sometimes do become public information and
get published in the media.
oAppropriate content of clinical case notes
There are two basic reasons to keep notes: (a) to provide quality
counseling services to clients and (b) to document decisions you have
made and actions you have taken as a counselor.
It is critical that you take your notes either during sessions or immediately
after. It does no good to write clinical case notes long after the counseling
session occurs. The whole purpose of the notes is to record on paper
what your memory will not hold.
Your own personal style should dictate whether you take notes during a
counseling session or after it is over. Both approaches have advantages
and disadvantages.
Taking notes during sessions allows you to record accurate information
immediately without having to rely on your memory.
A very important part of writing clinical case notes is to separate objective
information (what was said by anyone or observed by you during the
session) from your clinical impressions (hypotheses or conclusions you
developed as a result of what was said or observed).
You must be able to separate what was actually said from what you
thought about as a result of what was said.
A common format for clinical case notes is the use of SOAP notes, which
include four separate sections:
Subjective: information reported by the client
Objective: results of the counselor’s tests and other assessments
administered
Assessment: the counselor’s impressions generated by the data
Plan: diagnosis and treatment plan, along with any modifications
to them
Another format that is similar and is also used frequently is the DAP,
which is composed of three sections:
Data: objective description of what occurred during the session
Assessment: counselor’s interpretations based on the data, in the
context of the presenting problem and treatment plan
Plan: what the counselor intends to accomplish in the next session
or sessions
The second purpose for keeping clinical case notes is to document
decisions you have made or actions you have taken
When you document decisions or actions in your case notes, it is to
protect yourself in the event that such decisions or actions are
questioned later by anyone else
For example, listing the exact time a conversation took place could be
vital.
When you are talking to people other than your client, it is important to
include the person’s name, title, and contact information; date and time
the conversation took place; and any other information that might be
needed later.
Picture of documentation through records for self-protection in Figure 6-1
Client access to records
oThe legal perspective on health care records is that they are kept for the benefit
of the patient, and therefore the patient should have access to them and must
receive copies if requested (Claim of Gerkin, 1980; People v. Cohen, 1979).
oYou also could suggest that it might be more helpful for the client or for the
person to whom the client wants the records transferred if you were to create a
summary of your notes rather than copy the notes themselves.
oIf you were to refuse to show a client your clinical case notes regarding treatment
or refuse to provide copies for the client or for a third party that the client has
designated, the client probably could take legal steps to compel you to comply
with the demand. It would appear that the law supports the client’s rights to the
records (Application of Striegel, 1977).
oWhen counselors provide clients with copies of their counseling records,
counselors do not include confidential information related to any other clients
(ACA, 2014, §B.6.e.).
oFederal laws affecting counseling records
The most far-reaching federal law related to mental health records is
HIPAA.
Health insurance portability and accountability act
oAccording to the U.S. Department of Health and Human Services (HHS, 2014), the
HIPAA rules protect the privacy of individually identifiable health information.
oHIPAA was enacted on August 21, 1996.
oThe HIPAA statute required Department of Health and Human Services to issue
privacy regulations governing individually identifiable health information if
Congress did not enact privacy legislation within 3 years of the passage of HIPAA.
oHIPAA applies only to organizations and individuals who transmit health care
information in electronic form in connection with a health care transaction.
oThe Privacy Rule requirements went into effect on April 14, 2003.
All records and other individually identifiable health information held or
disclosed by a covered entity in any form—whether communicated
electronically, on paper, or orally—are covered by the HIPAA Privacy Rule.
oCounselors must give clients a clear written explanation of how counselors use,
keep, and disclose their health care information.
oIn addition, counselors must have available for clients to see, if they request it, a
set of written privacy procedures that include who has access to protected
information, how it will be used within the counseling office, and when the
information would or would not be disclosed to others.
oUnder HIPAA, clients must have a means to make inquiries regarding their
counseling records or to make complaints regarding the privacy of their records.
oStandard B.1.a. of the Code of Ethics (ACA, 2014) cautions counselors to maintain
sensitivity to cultural meanings of confidentiality and “respect differing views
toward disclosure of information.”
oit is important for counselors to have on their record release form a place for
clients to specify the purpose of their request that their records be transferred.
oStandard B.2.e. of the Code of Ethics (ACA, 2014) states that when disclosure of
confidential information is required, counselors reveal only essential information.
oThe privacy officer of an agency must train employees to handle confidential
information appropriately, ensure that procedures to protect client privacy are in
place and are followed, and ensure that proper forms are used by counselors and
other health care personnel.
oWhen a client wants to have psychotherapy notes transferred to a third party, the
client must specifically request their transfer. A general request for transfer of
records is insufficient. Clients must give their specific permission and
authorization for the sensitive information contained in psychotherapy notes to
be released.
oCivil penalties for violations of the HIPAA rules are $100 per incident, up to
$25,000 per person, per year, per standard.
oThe U.S. Department of Health and Human Services (2018) reported that in 2003
a total of 3,744 complaints were received alleging HIPAA violations (by all health
care providers, not just mental health care providers). The number of complaints
increased to 18,015 in 2014. In 2015, however, the number of complaints
decreased to 17,643.
oOne state court has ruled that, under HIPAA rules, a patient who was undergoing
review for mandated court-ordered outpatient treatment would have to be given
notice and the opportunity to object before the patient’s records could be
provided to a court through a subpoena (Gomez & Knight, 2013; In the Matter of
Miguel M. v. Barron, 2011).
oHIPAA is a federal law, so it applies throughout the United States and overrides
state laws that might be more lax.
oFamily educational rights and privacy act
The Family Educational Rights and Privacy Act of 1974 (FERPA), which is
sometimes referred to as the Buckley Amendment, affects all public
educational institutions and any private or parochial educational
institution that receives federal funding in one form or another (Doll,
Strein, Jacob, & Prasse, 2011).
The penalty for violating provisions of FERPA is the loss of all federal
funding, which could be devastating for many educational institutions.
Individuals cannot bring lawsuits under FERPA (Tarka v. Franklin, 1989).
Under 24 CFT 164.501, health information contained within student
educational records that are subject to FERPA is exempt from the
requirements of HIPAA.
FERPA legislation basically says that minor students’ parents (and
students themselves who are 18 or older or who are in college) have two
rights: (a) to inspect and review their education records and to challenge
the contents to ensure the records are not inaccurate or misleading, and
(b) to have their written authorization obtained before copies of their
education records can be transferred to any third party (U.S. Department
of Education, 2014).
parents or guardians of dependent students may be given copies of the
records of such students without the student’s consent.
Dependent students are defined as children or stepchildren, over
half of whose support was received from the taxpayer the
previous tax year
Education records are defined in the federal legislation as records kept by
educational institutions regarding students.
As a result of these exemptions, clinical case notes kept by counselors in
educational institutions do not have to be shown to students, parents, or
guardians under FERPA requirements.
Schools are not required by FERPA to obtain written permission from
parents or students to release a student’s records to “other schools or
school systems in which the student intends to enroll” [FERPA, 1997, 20
U.S.C.A. §1232g(b)(1)(b)].
When an educational institution intends to release records pursuant to a
subpoena, the institution must notify parents and students in advance of
the release [FERPA, 1997, 20 U.S.C.A. §1232g(b)(2)(B); Mattie T. v.
Johnston, 1976; Rios v. Read, 1977], although notification is not required
if the subpoena orders that the existence of the subpoena not be
disclosed [FERPA, 1997, 20 U.S.C.A. §1232g(b)(J)(i–ii)].
In an emergency situation, an amendment to FERPA (1997) has given
permission to release private information without parent or student
written permission. The information must be “necessary to protect the
health or safety of the student or other persons” [20 U.S.C.A. §1232g(a)
(1)(I)]. This provision would allow counselors to release their records on
students to medical personnel or law enforcement authorities without
violating FERPA, if they determined that a student was a danger to self or
others.
Educational institutions may release to an alleged victim of any violence
the results of any disciplinary proceeding conducted against the alleged
perpetrator with respect to that specific crime [FERPA, 1997, 20 U.S.C.A.
§1232g(b)(6)].
FERPA also allows institutions to include in educational records any
disciplinary action taken against students and to disclose such action to
school officials in other schools [20 U.S.C.A. §1232g(h)].
No general common law principle requires counselors to obtain written
authorization from clients to transfer records to third parties. Oral
permission is legally adequate, but obtaining written authorization is
always recommended.
Federally funded substance abuse programs
oPrograms that receive federal funds must comply with federal laws related to
substance abuse treatment.
oA federal statute (Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1972, 1997, 42 U.S.C.A. §290dd-2) declares
that records kept by any facility that is “conducted, regulated, or directly or
indirectly assisted” by the federal government are confidential.
oExceptions to the nondisclosure of records requirement include the following: (a)
when the person gives prior written consent, (b) in medical emergencies, (c) for
audits or evaluations, and (d) to avert substantial risk of death or serious bodily
harm if a court order is secured. Records cannot be used for criminal charges or
investigations [42 U.S.C.A. §290dd-2(c)].
oHowever, a counselor’s direct observations are not a record and can be used in
criminal proceedings against clients or patients (State v. Brown, 1985; State v.
Magnuson, 1984).
oOther federal statutes
Additional federal statutes prohibit or limit the disclosure of counseling
records for the following clients who are served by federally assisted
programs: (a) runaway and homeless youth [42 U.S.C.A. §5731], (b)
individuals with sexually transmitted diseases [42 U.S.C.A. §247c(d)(5)],
(c) voluntary clients in federal drug abuse or dependence programs [42
U.S.C.A. §260(d)], (d) older persons [42 U.S.C.A. §3026(d); 42 U.S.C.
§3027(f)(1)], and (e) victims of violence against women [42 U.S.C.A.
§14011(b)(5)]. On the other hand, statutes sometimes expressly limit
privacy. A federal statute specifically denies confidentiality to individuals
who are examined by a physician in civil commitment proceedings due to
drug abuse [42 U.S.C.A. §3420].
oHandling, storing, and destroying records
Agencies or practices regulated under HIPAA must have written policies
regarding records and must make those policies available for client
review.
oVoluntary transferring records
The ACA Code of Ethics (2014) requires that counselors obtain written
permission from clients to disclose or transfer copies of records (§B.6.g.).
The written and signed authorization from the client should be filed in the
client’s folder. In addition, a notation should be entered in the client’s file
indicating which records were sent and when, the method of transfer
(e.g., U.S. mail, courier service, personal delivery), to whom they were
sent, and the address of the recipient.
Subpoenas
oSubpoenas are legal documents that might require counselors to produce copies
of records; appear for a deposition, court hearing, or trial; or appear and bring
their records with them
oSubpoenas are official court documents and cannot be ignored.
oDiscovery in litigation
Subpoenas are used extensively during the discovery or pretrial phase of
lawsuits.
oValidity of subpoenas
If an attorney issues a subpoena to you, your first step is to consult your
own lawyer to determine whether the subpoena is valid and whether you
must respond to it
In the event you receive a subpoena to appear at a legal proceeding, but
no mention is made of records, do not take records with you unless you
are instructed to do so by your own attorney.
oInterrogatories
One of the easiest types of subpoenas to deal with involves
interrogatories. Included with the subpoena will be a set of written
questions with a requirement that you respond to each question in
writing. You must sign an oath that your answers are truthful.
Testimony under oath
oTurning over records
If the attorney issuing the subpoena wants copies of those records, the
individual or entity that created them will have to be subpoenaed.
The Code of Ethics (ACA, 2014) states that when counselors receive
subpoenas for counseling records of their clients, counselors must obtain
written informed consent from their clients to release the records or, if
that is impossible, must “take steps to prohibit the disclosure or have it
limited as narrowly as possible due to potential harm to the client or
counseling relationship” (§B.2.d.).
If the subpoena is determined to be valid, then counselors and their
attorneys should do what they can to limit the disclosure of private client
information.
