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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Part of the deal of being a therapist is responding to subpoenas, should the need arise. Therapist should have a working knowledge of the laws pertaining to the preparation and service of subpoenas.
David G. Jensen, JD former Staff Attorney The Therapist September/October 2011
Since confidentiality is the corner-stone of the therapist-patient relationship, therapists are keenly aware of the importance, both clinically and legally, of maintaining the confidentiality of outpatient psychotherapy treatment records ("Outpatient Records"). But, today, Outpatient Records are being sought by third parties for a wide-variety of purposes. As we shall see, some laws permit disclosures of medical records or medical information without the patient's written authorization. But, do those laws permit disclosures of Outpatient Records without a patient's written authorization? When it comes to maintaining the confidentiality of Outpatient Records, therapists must understand how California Civil Code § 56.104 limits access by third parties to such records. In fact, when it comes to maintaining the confidentiality of this information, Civil Code § 56.104 is one of the most lethal arrows in our quiver.
Pin the Tail on the Donkey Disclosing Outpatient Records is like playing the childhood game of Pin the Tail on the Donkey. You remember that game, right? After being made dizzy, one had to then try and pin the tail on some sort of cardboard, cut-out donkey. The winner of the game was the one who pinned the tail closest to where tails are supposed to be on donkeys. Of course, hilarity resulted because the dizziness made the task difficult, and the child playing the game usually attempted to pin the tail on furniture, parents, and even other children at the party.
Although being somewhat facetious, I am also being quite serious. Disclosing Outpatient Records really is like the childhood game of Pin the Tail on the Donkey. Think of it this way: If the donkey's tail represents Outpatient Records, and the cardboard donkey represents the law that allows for disclosures of such records, you always want to "pin" your decisions to disclose patient information on specific laws sanctioning such disclosures. This is how you win the psychotherapy version of the game! So, the essence of Pin the Tail on the Donkey is really the same as the essence of making disclosures of Outpatient Records: It is all about "pinning" the tail of a decision to disclose such records on the donkey of a specific law sanctioning that disclosure. The psychotherapy version of Pin the Tail on the Donkey is different from the childhood version of the game, however. In the childhood version of the game, there is only one donkey to try to pin the tail on; however, in the psychotherapy version of the game there are three donkeys, meaning three principles of law, in the game to choose from. This raises a key point about the psychotherapy version of the game: It is not enough to pin the tail on just any of the three principles of law; rather, the emphasis in the game is on pinning the tail on the correct principle of law.
Three Principles of Law Three principles of law can be used to justify disclosures of Outpatient Records, but keep in mind that the classification of Outpatient Records is a separate and distinct category of patient records from medical records or medical information. The three principles of law pertaining to Outpatient Records are:
But, what about all of the Permitted Exceptions to Confidentiality set forth in California Civil Code § 56.10(c)? As we shall see, the Special Rule for Outpatient Records trumps the law establishing the Permitted Exceptions to Confidentiality. Consequently, when it comes to disclosing Outpatient Records, we want to pin the tail of the donkey on the Special Rule and not on the Permitted Exceptions to Confidentiality. Although the code sections are alike in terms of the numbers involved, i.e., 56.10, on one hand, and 56.104, on the other, these laws are very different, and therapists must understand the differences between them to maximize the confidentiality of Outpatient Records.
As a reminder, decisions to disclose Outpatient Records do not need to be "pinned" on all three of these principles. Rather, a decision to disclose such records just needs to be "pinned" on one of them.
Additionally, the phrase "Outpatient Records" is intended to refer to the actual records as well as to the information contained therein. And, the phrase "Special Rule for Outpatient Records" is my own shorthand summary description of the law in Civil Code § 56.104. It is not a legal term itself.
Written Authorizations Oftentimes therapists disclose Outpatient Records to third parties because the patient has authorized such disclosure in writing. Both HIPAA and California law sanction the use of written authorizations. Consequently, disclosing Outpatient Records with the written authorization of the patient is always a good principle to pin a decision to disclose patient information on. This is a very safe option for therapists to take. Any disclosure of the patient's information, even a seemingly ill-calculated or ill-advised one, was done with the patient's express written authorization, which was hopefully made after consultation with an attorney. Sometimes though you cannot prevent patients from making poor choices!
Mandated Exceptions to Confidentiality Other times therapists disclose certain information because the law requires them to do so. The most common types of mandated disclosures are making suspected child, elder, and dependent adult abuse reports and responding to court orders. Consequently, disclosing certain information because the disclosure is mandated by law is another good principle to pin a decision to disclose information on. In fact, failing to make mandated disclosures of certain information can result in greater legal trouble for therapists than making the disclosure!
The Tension between the Special Rule and California Civil Code § 56.10(c) Disclosures made with the written authorization of the patient or because they are mandated by law are the easy exceptions to confidentiality with which to deal. To comply with the law, you simply need a written authorization or a law mandating disclosure of the information. The laws mandating disclosure of patient information are set forth in California Civil Code § 56.10(b). The more difficult situations arise with disclosures of patient information that may be permitted, but not necessarily mandated, by the law. With regards to permitted exceptions to confidentiality and the disclosure of Outpatient Records, there is some tension in the law. Whereas California Civil Code § 56.10(c) generally permits disclosures of medical information, the Special Rule for Outpatient Records generally restricts disclosures of Outpatient Records, which are given heightened protection under the law. So, in essence, one law permits access and another restricts it. Hence, the resulting tension. To maximize the confidentiality of Outpatient Records, therapists must understand how the tension between these two laws is resolved.
As of the writing of this article, there were twenty-two Permitted Exceptions to Confidentiality. Obviously, that is a lot of information that can be disclosed without a patient's written authorization. Here, for example, are some of the purposes for which medical information can be disclosed to third parties, again without the patient's written authorization: to diagnose and treat the patient; to effectuate payment for health care services rendered to the patient; to effectuate billing, claims management, medical data processing, or other administrative services for the provider; to review a provider's competence or qualifications; to review health care services with respect to medical necessity, level of care, quality of care, or justification of charges; to get facilities licensed or accredited; to assist the county coroner with certain investigations; and, to conduct research.
But, do these Permitted Exceptions to Confidentiality apply to Outpatient Records? Should Outpatient Records be disclosed without the patient's written authorization? What happens when a third party, such as an insurance company, demands Outpatient Records for one of the purposes set forth in the Permitted Exceptions to Confidentiality? Which "donkey" should you pin the tail on?
Perhaps a real life situation will help illustrate the issue. Suppose you are a contracted provider with Blue Moon Insurance Company and Blue Moon wants to audit your treatment records for three of Blue Moon's enrollees who happen to be your patients as well. Blue Moon will likely say that it is lawful for you to provide us with these records because there is a Permitted Exception to Confidentiality that allows for this information to be disclosed to us, even without the patient's written authorization. Going back to our game of Pin the Tail on the Donkey, this is the equivalent of Blue Moon saying that it is okay for you to pin the tail of the donkey on this principle of law.
But, is it? In the psychotherapy version of the game of Pin the Tail on the Donkey, the object of the game is not just to pin the tail on a donkey, but to pin the tail on the correct donkey, meaning the correct principle of law. In this case, because Outpatient Records are being sought, the correct law to pin the tail of the donkey on would be the Special Rule for Outpatient Records and not the Permitted Exceptions to Confidentiality. The Special Rule for Outpatient Records trumps the Permitted Exceptions to Confidentiality [see California Civil Code § 56.104(a)].
Under the Special Rule for Outpatient Records, Blue Moon would have to notify the enrollees seeing you for therapy that they would like to audit your treatment records and get such enrollees to execute written authorizations allowing you to disclose their Outpatient Records to Blue Moon for its auditing purposes. The Special Rule is truly special because it brings patients back into the fold in terms of informed decision-making. Unless the disclosure is mandated by law, with the exception of three situations to be addressed next, Outpatient Records should not be disclosed without the patient's written authorization.
The Special Rule for Outpatient Records (California Civil Code § 56.104) Under the Special Rule for Outpatient Records, unless the disclosure is mandated by law, such records should only be disclosed to third parties with written authorization of the patient unless the disclosure is for one of the following three reasons:
1. The information may be disclosed to providers of health care, health care service plans, contractors, or other health care professionals or facilities for purposes of diagnosis or treatment of the patient [California Civil Code § 56.104(e)(1)]. 2. If you have made Tarasoff warnings, the information may be disclosed to law enforcement or to potential victims of a patient's violent conduct, assuming law enforcement or the potential victim(s) has requested such information and the disclosure of it is clearly necessary to prevent a serious and imminent threat of violence [California Civil Code § 56.104(e)(2)].
3. The information was reported to applicable governmental agencies for child abuse, elder abuse, or dependent adult abuse reporting purposes, including any follow-up investigation by such organizations of the suspected abuse [California Civil Code § 56.104(e)(3)].
Conclusion In reviewing the legislative history of the Special Rule for Outpatient Records, it is clear that it was created by the California state legislature to give heightened protection to Outpatient Records, which makes perfect sense to therapists, but, sometimes not to third parties such as insurance companies, who seemingly want more and more access to Outpatient Records. We shouldn't give them up too easily.
When drafting Civil Code § 56.104, the state legislature found many themes that resonate deeply with bedrock principles of therapy: the need for trust between patient and practitioner; the need for privacy of patient information; the need for open communication between patient and therapist to effectuate treatment; and, the realization that disclosures of patient information to third parties could jeopardize the patient's treatment. This is profound stuff! The "stuff" of insight and change! And, it is vitally important to keep in mind that Civil Code § 56.104 gives patients heightened protection of their Outpatient Records. Consequently, to maintain that heightened protection, therapists should insist on written authorization of the patient before disclosing Outpatient Records, unless, of course, the disclosure is mandated by law or by the Special Rule for Outpatient Records.
David Jensen, JD, is a Staff Attorney at CAMFT. He is available to answer members' questions regarding business, legal, and ethical issues.