If It Isn’t Written Down…It Didn’t Happen
Psychiatrists, psychologists, counselors, social workers, case managers, and nurses among others keep records for a myriad of reasons. Most importantly to benefit the client, but also for accountability, to defend him/herself in a malpractice suit, billing purposes, in a hearing before a professional board or for continuity of care. What is in those records, how they are stored and when and how they are released are all important factors for a professional to consider for both ethical purposes and to maintain a professional position.
A risk managed approach to documentation is a best practice to protect both the client and the professional. Risk management is a coordinated effort to both benefit the client and protects the practice or agency from legal vulnerability. The first step in any risk management plan is the identification of risks. The maintenance, content, and disclosure of records clearly pose a threat regarding exposure. By looking at the documentation with a risk-managed approach, the professional becomes sensitive to what is stated, how it is stated, where it is kept, who has access and in turn, the consequences of what-if scenarios are reduced.
Effective documentation can provide a history and current status of a clients treatment or situation. This can benefit the therapeutic process by noting progress and marking the appropriate course of services. It provides the professional the means of reviewing the myriad of services and professionals all on a file. If the client begins to decline the progress notes can provide insight into what might have preceded the difficulty. What information is maintained in the record is of consequence in many cases; one of the points is if the record becomes a court document, as many do. Additionally, conscientious maintenance of records may be necessary for financial purposes. Third-party payers often require certain types of documentation for reimbursement.
There are federal and state laws that governing record keeping and many agencies have their own requirements. Also, records requirements are generally noted in associations ethical codes. For example:
The American Psychological Associations code of ethics states that Psychologists must provide appropriate documentation for their professional and scientific work in order to facilitate the provision of services later by them or by other professionals, to ensure accountability, and to meet other requirements of institutions or the law (APA, 1992).
The National Association of Social Workers Code of Ethics states, Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided, and Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future (NASW, 1996).
The American Counseling Association Code of Ethics and Standards of Practice, states that counselors maintain records necessary for rendering professional services to their clients and as required by laws, regulations, or agency or institution procedures (ACA, 1995).
As you can see, these hardly lay a process or identify specific guidelines for record keeping. What is sufficient and timely documentation and until you are in court how does one know what records are necessary for rendering professional services? As we continue through this course we will look specifically at the necessary content of different types of records, the control of records, the requirements for the retention of records, and the appropriate disclosure of records.
Child Welfare Documentation
Records provide an ongoing “picture” of the nature of child welfare involvement with families, the progress toward achieving outcomes, and the basis of decisions that eventually lead to case closure. The process of record-keeping itself helps to clarify and focus on child welfare work.
Good documentation can:
Provide accountability for the agency and the case manager. Records should describe who is and is not served (including any other household members who may not be participating in services), the kinds of services provided (or not provided due to availability or level of service issues), the basis for all decisions, the degree to which policies and procedures are implemented, and other aspects of accountability and quality control. The record provides a statement about the quality of work that may decrease personal liability should legal action be taken against the agency or a case manager.
- Serve as a therapeutic tool for the case manager and the family. Case records can demonstrate the way in which the professional and family collaborate to define the purpose of child welfare work, including the goals and outcomes that will reduce the risk of maltreatment, and serve to evaluate the progress toward them. Some agencies are using instruments and tools that seek input, and, therefore, the record itself provides an illustration of this collaborative process.
- Organize the case manager’s thinking about the work. Structured presentation of factual information leads to more in-depth assessment and treatment planning. Sloppy recording and disorganized thinking go hand-in-hand and will likely lead to poor service delivery to clients.
In addition to the primary purposes of record-keeping listed above, the case record becomes a means for supervisory review, statistical reporting and research, and interdisciplinary communication.
Content of Case Records
Case records should factually document what services accomplish in terms of assessment and intervention, as well as the results of interventions and treatment, which serve the outcomes of child safety, permanence, and well-being. Family records, whether paper or automated, should include:
- Information about the nature and extent of the referral or report; identify demographic data on the child, family, and significant others; and the response of the agency to the referral.
- A record of all dates and length of contacts, including in-person and telephone interviews with all family members, collateral sources, and multidisciplinary team, as well as the location and purposes of these contacts.
- Documentation that the family has been informed of the agency’s policy on the release of information from the record.
- Information about the initial assessment, including documentation of what may have already occurred (e.g., the report of alleged child maltreatment), as well as the assessment of the risk to and safety of the child.
- Information about any diagnostic procedures that may have been part of the initial assessment (e.g., medical evaluations, x-rays, or other medical tests; psychological evaluations; and alcohol or drug assessments).
- Clear documentation of initial decisions with respect to substantiation of the alleged maltreatment, risk assessment and safety evaluation, basis for any placement in out of home care or court referral (if necessary), and reasons for continued agency involvement or for terminating services.
- The safety plan, if one was developed, and documentation of referrals to other programs, agencies, or persons who will participate in the implementation of the safety plan.
- A record of the family assessment (including risks and strengths) and a delineation of the treatment and intervention needs of the child, caregivers, and the family.
- A description of any criminal, juvenile, or family court involvement and the status of any pending legal action in which the client may be involved.
- The case plan with specific measurable goals, as well as a description of the process used to develop the plan.
- Specification of the intervention outcomes, which, if achieved, will reduce the risks and address the effects of maltreatment. These intervention outcomes should lead to the achievement of child safety, permanency, and child and family well-being.
- Documentation of the case activities and their outcomes, including information from all community practitioners providing intervention or treatment (written reports should be requested from all providers) and information about the family’s response to intervention and treatment.
- Information about the progress toward the achievement of outcomes, completion of case plans, risk reduction process, and reunification of children with their families or other permanency options.
- Information provided to the court, if court involvement was necessary.
- Inclusion of a case-closing summary that describes:
- outline summarizing the original reason for referral;
- process of closure with the family;
- outcomes and goals established with the family;
- nature of the services provided and the activities are undertaken by the various practitioners and the family;
- description of the level of progress accomplished with respect to outcomes and goals;
- summary of any new reports of maltreatment that may have occurred during intervention;
- assessment of risk and safety as it now exists;
- problems or goals that remain unresolved or unaccomplished;
- reasons for closing the case.
Principles of Record-keeping
The case record is a professional document and tool. As such, it should be completed in a timely and professional manner, and confidentiality should be respected at all times. This means that appropriate controls should be in place to ensure the security of paper and automated files.
Case Managers should:
- Maintain only information that is relevant and necessary to the agency’s purposes. Facts should be recorded and distinguished from opinions. When opinions are offered, their basis should be documented (e.g., Mr. Smith appeared to be intoxicated; his eyes were red; he had difficulty standing without losing his balance; his breath smelled of alcohol).
- Never record details of clients’ intimate lives or their political, religious, or other personal views, unless this information is relevant to child welfare purposes.
- Record as much information as possible based on direct communication with clients.
- Inform clients about the agency’s authority to gather information, their right to participate (or not) in the process, the principal purpose for the use of the information that they provide, the nature and extent of the confidentiality of the information, and under what circumstances information in records may be shared with others.
- Never disclose any verbal or written information about clients to other practitioners without a signed “release of information” prior to disclosure. An exception usually exists in State child abuse reporting laws to provide for the sharing of information between members of a multidisciplinary team. Specific State laws and policies should guide these actions.
- Retain and update records to assure accuracy, relevancy, timeliness, and completeness. Mark errors as such rather than erasing or deleting them.
- Use private dictation facilities when using dictation equipment to protect a client’s right to confidentiality.
- Never include process recordings in case files. The primary purpose of a process recording is to build the practitioner’s skills. As such, they do not belong in an agency record.
- Obtain the child and family’s permission before audio taping or videotaping any session and inform the client that refusal to allow taping will not affect services.
- Never remove case records from the agency, except in extraordinary circumstances and with special authorization (e.g., if the record was subpoenaed for the court).
- Never leave case records or printouts from the automated file on desks or in other open spaces where others might have access to them.
- Keep case records in locked files. Keys should be issued only to those requiring frequent access to files. There also should be a clear record of the date that the file was removed and by whom. Similar security procedures (e.g., password-protected) should be provided for automated case records.
Quality record-keeping is an integral part of professional child welfare case management practice. When the case record is used as an opportunity to organize the worker’s thinking and to integrate an approach to measuring the results of welfare work, it becomes an important part of the process rather than something that only documents the process.
Documentation is an essential part of case management practice. Supervisors should review case documentation on a regular and systematic basis. Review of case documentation provides the supervisor with information about the frequency and content of case manager-client contacts; the family’s strengths, needs, and risks; the plan to assure safety; casework decisions; services or interventions to reduce risk; progress toward outcomes; and any changes in the child and family’s situation.
Control of Records
To ensure the patient right of confidentiality and to be consistent with many federal and state regulations, professionals must take reasonable steps to control the access of information arising from the delivery of medical services. The regulations vary from state to state, however, nationally the Health Insurance Portability and Accountability Act of 1996 (HIPAA) has set standards for electronic transactions among providers and health plans that went into effect October of 2003. The Privacy Regulations that went into effect April of 2003 protect all individually identifiable health information, in whatever form it exists. This regulation has two goals, first to protect the confidentiality of individually identifiable health information in the hands of covered entities (providers) by restricting how it can be used and disclosed and secondly, it gives individuals new rights concerning their health information in the hands of covered entities. HIPAA requires providers to explain to their clients how they use and disclose protected health information through the use of a Notice of Privacy Practices and it requires providers to obtain written authorization from the individual before using or disclosing health information for non-routine purposes, such as research or marketing. Examples of protected health information under HIPAA include a providers patient medical record; a health plans claim data, an email from a patient, even a conversation between a provider and the practices receptionist about the insurance coverage.
Each state also has confidentiality regulations. These should be researched through your state Legislation and Statutes.
Records may be maintained in a myriad of media, such as computer disks, computer hard drive, and paper files. It is required by many state regulations that client paper files be kept in a locked file cabinet in a locked office. Files should not be left out on a desk for other clients or unauthorized persons to view.
Ultimately, it is the provider’s responsibility to maintain control over their client’s records, taking into account the policies of the facilities and the laws of the state in which they practice.
To offer an overview of how a nationally-recognized professional board views the control of records, the National Board for Certified Counselors (NBCC), states in their Code of Ethics: Records of the counseling relationship, including interview notes, test data, correspondence, audio or visual tape recordings, electronic data storage, and other documents are to be considered professional information for use in counseling. Records should contain accurate factual data. The physical records are the property of certified counselors or their employers. The information contained in the records belongs to the client and therefore may not be released to others without the consent of the client or when the counselor has a valid court order. The certified counselors are responsible to ensure that their employees handle confidential information appropriately. (NBCC, 1998). Concerning the storage of data the NBCC states, certified counselors must ensure that data maintained in electronic storage are secure. By using the best computer security methods available, the data must be limited to information that is appropriate and necessary for the services being provided and accessible only to appropriate staff members involved in the provision of services. Certified counselors must also ensure that the electronically stored data are destroyed when the information is no longer of value in providing services or required as part of clients records. (NBCC, 1998).
Requirements for the Retention of Records
Again, a professional must make themselves aware of the specific state and local laws governing the retention of records. Each professional should also consult the code of ethics for the boards by which they are certified. According to the American Psychological Association, in the absence of state and local laws, it is required that records be maintained for a minimum of 3 years after the last contact with the client. Records, or a summary, are then maintained for an additional 12 years before disposal. If the client is a minor, the record period is extended until 3 years after the age of majority. (American Psychologist, 1993). The NBCC states, Confidentiality must be maintained during the storage and disposition of records. Records should be maintained for a period of at least five (5) years after the last counselor/client contact, including cases in which the client is deceased. (NBCC, 1998). An example of how the boards can vary from the various state legislatures occurs in Florida where medical records must be maintained for seven (7) years. Child abuse reports in the state of Florida must be maintained seven (7) years or until the child is 18. These regulations extend beyond the NBCC requirements.
Disclosing information with a valid release of the record still produces anxiety as others have an opportunity to peruse the quality of your work. However, the decision to breach confidentiality in light of a client who is a danger to themselves or others, child or elder abuse or in certain legal situations is fraught with uncertainty for most professionals. Is the client in danger? Is someone else in harm’s way? When is communication privileged? Will I lose my license, but be able to sleep at night and stay out of jail?
Communication between a professional and the client is meant to be confidential. Without this measure of security, it is difficult to build the rapport necessary to get a client to open up. The information is given in treatment was not intended to be disclosed later in a custody battle or in a suit against an employer. It should be understood that unless communication is relevant to compel hospitalization of a patient who is a danger to themselves or others, in the case of child or elderly abuse or a release is signed by the client, the professional should exhaust all efforts to keep information privileged to the full extent of the law in their state. According to the NASW Code of Ethics, Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep the information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed. (NASW, 1996).
In most states, the disclosure of information during a legal proceeding requires a court order, not simply a subpoena. The NASW requires, Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (NASW, 1996). As seen through this board, even in the face of a court order the professional can respectfully request of the judge that the information being sought remain privileged or in some way protected. It is not recommended that the professional refuse to cooperate with the legal system, but rather work within it to protect the client to the full extent of the law.
While working with families, couples, or groups the professional should seek agreement among the participants involving each person’s right to confidentiality and disclosure of information. Many a marriage counselor can tell the tale of a spouse requesting the information divulged during marriage counseling be used in court while the other spouse requests confidentiality.
In the event a boards ethical standard is not in line with a state’s laws, it is the professional’s responsibility to attempt to satisfy both requirements but always adhere to the legal requirements. To gain a clear understanding of the requirements in your state, it is recommended you seek out continuing education in a Laws and Rules course specific to your area.