by: David G. Jensen, former Staff Attorney
The Therapist
(May/June 2004)

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When it comes to being caught between a rock and a hard place, you won't find a group of clinicians in a more difficult legal quandary than those licensees, interns, and trainees [collectively "psychotherapist(s)"] who learn of reportable incidents of elder or dependent adult abuse while working in federally assisted alcohol and drug treatment programs. Why? California law mandates the reporting of elder and dependent adult abuse, but federal law, in general, does not mandate the reporting of such abuse. Consequently, if the psychotherapist follows California law and reports the elder or dependent adult abuse, the psychotherapist may be fired by the federally assisted alcohol and drug treatment program and prosecuted by the federal government for breaching patient confidentiality; conversely, if the psychotherapist follows federal law and does not report the elder or dependent adult abuse, the psychotherapist may be disciplined by the California Board of Behavioral Sciences for committing unprofessional conduct for failing to file a mandated report. Moreover, in California, the psychotherapist may also face civil liability and/or criminal prosecution for failing to file the mandated report. Hence, under current California laws and regulations and current federal laws and regulations, the psychotherapist is seemingly damned if he or she makes the report and damned if he or she does not make the report.

How can this be?
The dilemma results from a conflict between the federal laws and regulations governing the confidentiality of patient information in federally assisted alcohol and drug treatment programs and California's laws and regulations governing the mandated reporting of elder and dependent adult abuse. The laws are inconsistent, meaning that by complying with one you cannot comply with the other. This inconsistency results because California law requires psychotherapists to report elder and dependent adult abuse, but federal laws and regulations, in general, prohibit the reporting of such abuse. To understand this dilemma better, we must first examine applicable California law on the subject of elder or dependent adult abuse reporting.

A Review of Mandatory Reporting Requirements for Elder or Dependent
Adult Abuse Under California Law
In California, licensed marriage and family therapists, registered interns, and trainees are "health practitioners."¹ And, all "health practitioners" are mandated reporters for purposes of reporting elder and dependent adult abuse.² Throughout this article, the terms "health practitioner," "mandated reporter," and "psychotherapist" are used synonymously. An "elder" is someone residing in California who is 65 years of age or older.³ A "dependent adult" is someone between the ages of 18 and 64 who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.⁴ A "dependent adult" is also someone between the ages of 18 and 64 who has been admitted as an inpatient to 24- hour health facilities, including, but not limited to, general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, and intermediate care facilities.

Abuse of an elder or dependent adult can occur in many ways. For instance, it can be physical abuse, which includes acts that injure the body as well as sexual abuse;⁶ abandonment, which essentially means leaving an elder or dependent adult alone when a reasonably competent person would not have left such person alone;⁷ abduction, which essentially means removing an elder or dependent adult from this state without proper consent, or preventing an elder or dependent adult from returning to this state;⁸ isolation, which essentially means preventing an elder or dependent adult from receiving mail, telephone calls, or visitors;⁹ financial abuse, which essentially means the wrongful taking of an elder or dependent adult's property; ¹⁰ or, neglect, which essentially means the failure of whomever is caring for an elder or dependent adult to provide food, clothing, medical care, or shelter.¹¹

Pursuant to California law, a mandated reporter must report elder or dependent adult abuse:

1. If the reporter has observed or has knowledge of an incident that reasonably appears to constitute such abuse;
2. If the mandated reporter reasonably suspects that elder or dependent abuse has occurred; or,
3. If the mandated reporter is told by an elder or dependent adult that he or she has been the victim of such abuse¹²

However, with regard to option (3) above, the mandated reporter does not have to report abuse reported by the elder or dependent adult:

1. (If the mandated reporter is not aware of any independent evidence that corroborates the elder's or dependent adult's statement that abuse has occurred;
2. If the elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or dementia; and,
3. In the exercise of clinical judgment the psychotherapist reasonably believes that the abuse did not occur.¹³

In California, failing to report elder or dependent adult abuse is a misdemeanor,¹⁴ which is punishable by imprisonment in the county jail for up to six months and/or a fine of up to one thousand dollars.¹⁵ However, if the abuse of the elder or dependent adult results in the death of or great bodily injury to an elder or dependent adult, the imprisonment can be for up to a year and the fine can be up to five thousand dollars.16 These are severe penalties, but the trouble does not end there. The mandated reporter who fails to report elder or dependent adult abuse may also be subject to civil liability under negligence theories17 as well as discipline from the California Board of Behavioral Sciences for committing unprofessional conduct by failing to make a mandated report.18

The bottom line for psychotherapists is that if you learn of an instance of elder or dependent adult abuse, or you reasonably suspect that such abuse has occurred, you must report such abuse to the appropriate government agency. That is the law, as far as the State of California is concerned. But, as I indicated earlier, federal laws and regulations, in particular the laws and regulations pertaining to federally assisted alcohol and drug treatment programs, change the mandatory reporting requirements of psychotherapists for reporting elder and dependent adult abuse in California.

What is a Federally Assisted Alcohol and Drug Treatment Program?
Up to this point in this article, including the title and headings, I have used the phrase "federally assisted alcohol and drug treatment program" seven times. Psychotherapists working in alcohol and drug treatment programs must understand the concept of federal assistance because the legal quandary I referred to in the first paragraph is created only in this particular type of alcohol and drug treatment program.

However, not all alcohol and drug treatment programs are federally assisted ones. Some alcohol and drug treatment programs are operated on a private, for-profit basis. These private alcohol and drug treatment programs basically refuse to accept federal money so that they can operate outside of federal constraints. If you are a psychotherapist and you are working in a private alcohol and drug treatment program, then you will not find yourself in the legal quandary mentioned earlier because the private programs are not subject to the federal laws and regulations that create the quandary.19 As a psychotherapist in a private alcohol and drug treatment program, you are a mandated reporter who is subject to California law only on the issue of elder or dependent adult abuse reporting. Consequently, if you are employed as a psychotherapist in a private alcohol and drug abuse program, you would report instances of elder or dependent adult abuse; whereas, a psychotherapist employed in a federally assisted alcohol and drug treatment program would not, in general, have to report such abuse.

So, what is a federally assisted alcohol and drug treatment program? Actually, the question is a bit misleading because there are two subparts to the question, with each subpart requiring its own analysis. The first question is: what is an alcohol and drug treatment program? The second question is: what is federal assistance?

An alcohol and drug treatment program is:

1. An individual or entity (other than a general medical care facility) who holds himself or herself or itself out as providing, and actually provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment;
2. An identified unit within a general medical facility that holds itself out as providing, and actually provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment; or,
3. Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment, or referral for treatment.20

An alcohol and drug treatment program then can be individuals in private practice, non-profit corporations, employee assistance programs, for-profit corporations, schoolbased programs, as well as programs within general medical care facilities.21

An alcohol and drug treatment program becomes "federally assisted" when:

1. It is conducted in whole or in part, whether directly or by contract, by any department or agency of the United States;
2. It is being carried out under a license, certification, registration, or other authorization granted by any department or agency of the federal government;
3. It is supported by funds provided by a department or agency of the federal government that does not directly pay for the alcohol or drug abuse diagnosis, treatment, or referral activities; or, by being a program conducted by a state or local government unit which, through general or special revenue sharing or other forms of assistance, receive federal funds that could be (but are not necessarily) spent for the alcohol or drug abuse program; or,
4. It is assisted by the IRS through the allowance of income tax deductions for contributions to the program or through the granting of tax-exempt status to the program.22

These are fairly large nets that the federal government casts to try and bring as many alcohol and drug treatment programs as possible within the concept of federally assisted programs. Most alcohol and drug treatment programs are federally assisted because of the federal money that is available to fund such programs; however, there are many such pro grams that are privately operated. If you are employed by an alcohol or drug treatment program and you are unclear about whether the program you work for is federally assisted or privately operated, you should consult with your program director to determine the answer.

Thus far, on the subject of reporting elder and dependent adult abuse, we have found that:

1. California law requires psychotherapists to report elder and dependent adult abuse to appropriate government agencies;
2. There are two kinds of alcohol and drug treatment programs: federally assisted and privately operated;
3. Psychotherapists working in privately operated alcohol and drug treatment programs will follow California law on the issue of reporting elder or dependent adult abuse; and,
4. There is a conflict between California's laws and regulations and federal laws and regulations concerning the mandatory reporting of elder and dependent adult abuse in federally assisted alcohol and drug abuse treatment programs.

This next portion of the article is devoted to understanding the federal laws and regulations concerning the confidentiality of patient information in federally assisted alcohol and drug abuse treatment programs.

Confidentiality of Patient Information in Federally Assisted Alcohol and Drug Abuse Treatment Programs

The federal laws and regulations concerning the confidentiality of patient information in federally assisted alcohol and drug abuse programs operate similarly to what you already know about confidentiality and how it works under California law. Namely, what is communicated during a session is generally confidential unless a federal regulation creates some exception to confidentiality. Just like in California, the federal regulations will allow certain information to be disclosed from client records without patient authorization. However, the federal laws and regulations are generally stricter than California's laws and regulations because they do not allow as many exceptions to confidentiality as California does. Think of it this way, in California there are many holes in the Wall of Confidentiality, but under federal laws and regulations, there are few holes in such Wall.

Despite the similarity noted above, there are four differences between the federal confidentiality laws and regulations and California's confidentiality laws and regulations that are important to understand.

The first difference is that patient-identifying information in federally assisted alcohol and drug abuse treatment programs is subject to federal confidentiality laws and regulations and not state laws and regulations.23 Furthermore, state laws may not authorize or compel any disclosures of patient identifying information that are prohibited by the federal regulations.24 What this means is that the federal regulations, not state laws or regulations, are the governing rules for federally assisted alcohol and drug abuse treatment programs.

A second difference between the state and federal laws and regulations is that the federal laws and regulations are more protective of patient identifying information than state laws and regulations. Patient identifying information is synonymous with client information, with the phrase essentially meaning any information, including name, address, or social security number, by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information. 25 It also includes any information about a patient, whether recorded in the file or not.26 With very few exceptions, patientidentifying information cannot be disclosed for any reason without a subpoena and court order.27 Conversely, California has many mandated and permitted exceptions to confidentiality. Consequently, it is much easier to break confidentiality under California law than it is under the laws and regulations pertaining to the confidentiality of drug and alcohol patient information. The policy behind the ultra-strict alcohol and drug confidentiality rules seems to be to protect individuals from the ignominy of being alcohol and drug abuse patients.

A third difference between the state and federal laws and regulations is that the federal laws and regulations do not expressly allow for the reporting of elder or dependent adult abuse, although the regulations do allow for the reporting of child abuse.28 Since the federal regulations do not recognize the reporting of elder or dependent adult abuse as a reason for breaking confidentiality, in general, psychotherapists cannot make such reports without violating a patient's privacy rights because there is no federal regulation that allows us to make such reports.

Notice, however, that in the preceding paragraph I stated that the federal regulations do not expressly allow for the reporting of elder or dependent adult abuse. The federal regulations do allow, however, through the "back door" so to speak, for the reporting of elder abuse in four situations. The first situation occurs when the abuse also constitutes a crime committed by a patient on the program's premises.29 For instance, if a 35-yearold man beats a 66-year-old man while the patients are attending a counseling session, then the psychotherapist would be allowed, under the federal regulations, to make an elder abuse/crime report to law enforcement. Such report, however, must be limited to just describing the circumstances of the incident.30 Note, however, that the incident must have occurred on the alcohol and drug abuse treatment program's premises. If the abuse/crime occurs off the premises, i.e., while the same two people are golfing, then an elder abuse report would not be filed.

Why is there no exception to confidentiality under federal regulations for reporting elder and dependent adult abuse reports? I have no idea. Perhaps, when these regulations were enacted by the Department of Health and Human Services, the Department made a policy decision to allow for the reporting of child abuse but not elder or dependent adult abuse.

The second situation in which a psychotherapist is allowed to report elder or dependent adult abuse occurs when it is possible to report the abuse without communicating any information that identifies the patient as a drug or alcohol abuser.31 This sounds easy, but, in fact, can be very difficult. Psychotherapists employed in federally assisted alcohol and drug treatment programs will want to work closely with the program's attorneys to devise a strategy for reporting the abuse without identifying the patient as a drug or alcohol abuser.

The third situation in which a psychotherapist is allowed to report elder or dependent adult abuse occurs when the report is made with the written authorization of the patient.32 Of course, the federal regulations specify a form for such written authorization, which is very similar to the written authorization required in California.33 Psychotherapists employed in federally assisted alcohol and drug treatment programs will want to have the program's attorneys draft the authorization required by the federal regulations.

The fourth situation in which a psychotherapist is allowed to report elder or dependent adult abuse occurs when the disclosure is "necessary to protect against an existing threat to life or of serious bodily injury."34 A court must order the release of this information, however.35

A fourth difference between state and federal laws and regulations is that under California law patients can sue psychotherapists directly for breaches of confidentiality, but under federal laws and regulations, patients have no such private right of action. Consequently, under the federal laws and regulations, the federal government, not the patients, must bring civil actions against psychotherapists for breaches of confidentiality. 36 This is an important difference because it is highly doubtful that the federal government will prosecute psychotherapists for complying with applicable state law.

Where Do We Go From Here?

Psychotherapists who learn of reportable instances of elder or dependent adult abuse while working in federally assisted drug and alcohol abuse programs are between a rock and a hard place. This is a difficult ethical and legal quandary, and extricating oneself from such a quandary will be problematic at best. Because of the conflict between federal laws and regulations concerning the confidentiality of client information and state laws and regulations concerning the mandatory reporting of elder and dependent adult abuse, the psychotherapist may not be able to obey both sets of laws and regulations at the same time. Choosing to follow federal laws and regulations may mean failing to comply with state laws and regulations and viceversa. Either road, at this juncture, may lead to trouble, so psychotherapists must act very carefully when dealing with this issue. However, if you are a psychotherapist employed in a federally assisted alcohol and drug abuse treatment program and you learn of a reportable instance of elder or dependent adult abuse we recommend the following:

1. Consult with the alcohol and drug treatment program's attorney about your options for reporting, i.e., did the abuse constitute a crime committed by a patient on the alcohol and drug abuse treatment program's premises? Can a report be made without providing information that identifies a patient as a drug or alcohol abuser? Can you get authorization from the patient for the disclosure? Can you get a court to order the disclosure?
2. If you fail to report elder or dependent adult abuse and you are prosecuted by the California Board of Behavioral Sciences or the district attorney for failing to file an elder or dependent adult abuse report, you, or your attorney, should allege, as an affirmative defense, that federal laws and regulations prohibited you from making the mandated report.

 

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This article appeared in the May/June 2004 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. The information contained in this article is intended to provide guidelines for addressing difficult business and legal dilemmas. It is not intended to address every situation that could possibly arise, nor is it intended to be a substitute for independent advice or consultation. When using such information as a guide, be aware that laws, regulations, and technical standards change over time, and thus one should verify and update any references or information contained herein.

 

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¹Welfare & Institutions Code, Section 15610.37
² Welfare & Institutions Code, Section 15630(a)
³Welfare & Institutions Code, Section 15610.27
⁴Welfare & Institutions Code, Section 15610.23(a)
⁵ Welfare & Institutions Code, Section 15610.23(b)
⁶Welfare & Institutions Code, Section 15610.63
⁷Welfare & Institutions Code, Section 15610.05
⁸Welfare & Institutions Code, Section 15610.06
⁹Welfare & Institutions Code, Section 15610.43
¹⁰Welfare & Institutions Code, Section 15610.30
¹¹Welfare & Institutions Code, Section 15610.57
¹²Welfare & Institutions Code, Section 15630(b)(1)
¹³ Welfare & Institutions Code, Section 15630(b) (3)(A)(i)-(iv)
¹⁴Welfare & Institutions Code, Section 15630(h)
¹⁵Supra
¹⁶Supra
¹⁷Civil Code, Section 1714
¹⁸16 CCR 1858(p)
¹⁹42 CFR Section 2.12(e)(2)
²⁰42 CFR Section 2.11
²¹42 CFR Section 2.12(e)(1)
²²42 CFR Section 2.12(b)
²³42 CFR Section 2.22(a)(1)
²⁴42 CFR Section 2.20
²⁵42 CFR Section 2.11
²⁶42 CFR Section 2.11
²⁷42 CFR Sections 2.12(c), 2.13(a), 2.63, and 2.64
²⁸42 CFR Section 2.12(c)(6)
²⁹42 CFR Section 2.12(c)(5)(i)
³⁰42 CFR Section 2.12(c)(5)(ii)
³¹42 CFR Section 2.12(a)(1)
³²42 CFR Section 2.33
³³42 CFR Section 2.31
³⁴42 CFR Section 2.63(a)(1)
³⁵42 CFR Section 2.63(a)
³⁶42 USCA 290dd-2(f)