The Fabulous Five!
Five Ways to Avoid Pitfalls in Practice
Alain Montgomery, JD, Staff Attorney
The Therapist
November/December 2018

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Sometimes the best way to test your knowledge of a subject or topic is to review it in the context of an actual experience or to discuss the matter with a friend or colleague whose judgment you trust. Even if you consider yourself an ethical practitioner and with a strong sense of risk management, there are always opportunities to shore up your knowledge to ensure the absolute best practices. This article will cover some common pitfalls and general recommendations as to how they might be avoided.

 

1 Practice Within Your Scope of Competence
CAMFT Code of Ethics, Section 3.9:
Scope of Competence - “Marriage and family therapists take care to provide proper diagnoses of mental and emotional disorders or conditions and do not assess, test, diagnose, treat, or advise on problems beyond the level of their competence as determined by their education, training, and experience. While developing new areas of practice, marriage and family therapists take steps to ensure the competence of their work through education, training, consultation, and/or supervision.”

Competence is possessing the requisite skill, knowledge, qualifications, and capacities. It is important for therapists to be aware of their competence, with regard to the level of his/ her knowledge, training and experience in practicing a particular kind of therapy. When a therapist becomes aware of issues that may interfere with performing their duties adequately, it is best to take appropriate measures, such as obtaining professional consultation to determine whether therapy should be suspended or limited in some way. Under the California Business and Professions Code, Section 4982(s) it is a form of unprofessional conduct to “[Perform] or [hold] oneself out as being able to perform professional services beyond the scope of one’s competence, as established by one’s education, training, or experience.”

Suggested Best Practice:

• In situations that are beyond one’s scope of competence, seek supervision or refer the client to an appropriate provider.
• Stay in touch with the profession through conferences, continuing education, professional clinical consulting with colleagues, and reading journals, guidelines and other publications.

2 Maintain Confidentiality Unless Mandated or Permitted to Disclose Information
CAMFT Code of Ethics, Section 2: Confidentiality (Preamble) - “Marriage and family therapists have unique confidentiality responsibilities because the “patient” in a therapeutic relationship may be more than one person. The overriding principle is that marriage and family therapists respect the confidences of their patient(s).”

Maintaining confidentiality is the foundation of psychotherapy and therapists are expected to maintain the confidentiality of their clients. Clients are entitled to the assurance that their therapists will not reveal personal information learned during the course of treatment. However, there are certain exceptions to maintaining confidentiality that should be explained as part of the informed consent process. Exceptions to confidentiality that require the disclosure of confidential information include, but are not limited to, a situation where a therapist is mandated to release information, such as when the therapist is required to make a mandated child abuse report, or an elder/dependent adult protective services report; or, when the therapist has to protect the client from inflicting imminent danger upon themselves or another. It is important to know that under the California Business and Professions Code, Section 4982 (m), it is a form of unprofessional conduct to fail to maintain the confidentiality of a client. That section states unprofessional conduct consists of the “ failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client that is obtained from tests or other means.”

Suggested Best Practice:

• Discuss the limits of confidentiality with the patient at the outset of treatment as part of the informed consent process.
• Know and obey mandatory reporting laws and understand when you may make a permitted disclosure.
• Ensure the safe storage of confidential records.

CAMFT Resources on the topic of Confidentiality:

“Confidentiality Issues in Agency and Private Practice Settings,” The Therapist, September/ October 2008 by Michael Griffin.

“Confidentiality and Its Exceptions Including the US Patriot Act,” The Therapist, July/ August 2004 by Bonnie Benitez

“Privilege and Confidentiality Upheld,” The Therapist, January/February 2009, by David Jensen

3 Be Accurate in Billing and Forthcoming about Fees
CAMFT Code of Ethics, Section 9.3 Disclosure of Fees - “Marriage and family therapists disclose, in advance, their fees and the basis upon which they are computed, including, but not limited to, charges for canceled or missed appointments and any interest to be charged on unpaid balances, at the beginning of treatment and give reasonable notice of any changes in fees or other charges.”

Accuracy is critical when it comes to billing patients and insurers for therapeutic services. Therapists want to adopt the best practices when informing clients of their financial responsibilities because failing to disclose fees could give rise to legal as well as ethical considerations. In the statutes and regulations which prescribe unprofessional conduct, it is a form of unprofessional conduct to “[fail] to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed” prior to the commencement of treatment.¹

Suggested Best Practice:

• Discuss billing practices up front. Make sure to explain your financial policies and the patient’s financial responsibilities to the client at the beginning of therapy. Make sure the client understands whether or not they will be billed for skipped sessions and/ or whether they must pay for the services if the insurer refuses coverage.
• Bill only for services you actually provided based on the dates and time the patient was actually treated.
• Be conscientious about your paperwork. Remember that you are accountable for everything that you bill, regardless of whether you actually see the paperwork. Therefore, take time to periodically review your billing practices, policies and procedures to ensure best practices are complied with.

CAMFT Resources about Billing and Fees:
“Ten Reminders for Therapists about Fees,” The Therapist, May/June 2014 by Ann Tran “Handling Common Questions Regarding Fees, Payments, and Insurance,” The Therapist, July/August 2018 by Michael Griffin#

4 If You are a Supervisor, Know your Supervisory Responsibilities
CAMFT Code of Ethics, Section 4.4
Knowledge of Supervisors - “Supervisors and educators are knowledgeable about supervision, relevant laws, regulations, and the practice of marriage and family therapy. Supervisors and educators are knowledgeable about and abide by the laws regulations governing the conduct of supervisors and supervisees.”

Therapists are likely to be responsible for the acts of those who perform work under the scope of their employment or supervisory relationship. In addition to understanding the responsibilities of being a supervisor it is important to continually assess a supervisee’s competence. For example, it is a form of unprofessional conduct for a supervisor to “permit any trainee or registered associate under his or her supervision to perform any professional services beyond the scope of the registration and...to permit the trainee or registered associate to hold himself or herself out as competent to perform, professional services beyond the trainee’s or registered intern’s level of education, training, or experience.”² Remember, as a supervisor you bear responsibility for monitoring and evaluating the extent, kind, and quality of counseling performed by the trainee or registered associate and ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the trainee or registered associate.³ And keep in mind that supervisors are under an obligation to sign off on supervisee’s hours that were earned in good faith.⁴

Suggested Best Practices:

• Be extremely familiar with your responsibilities as outlined in the “RESPONSIBILITY STATEMENT FOR SUPERVISORS OF A MARRIAGE AND FAMILY THERAPIST TRAINEE OR REGISTERED ASSOCIATE.”
• Outline the nature and structure of the supervisory relationship in writing before supervision begins. Review both parties’ responsibilities as well as intensity of the supervision and other key aspects of the job.
• Establish timely and specific processes for providing feedback—and provide information about these processes at the beginning of the supervision relationship.
• Document experience with the supervisees, including supervision dates, discussions they’ve had and other relevant facts. Such information will help if ethical dilemmas arise later.
• Explain to patients that the therapist is in training and give clients the name of the supervisor. Note that billing may be under a supervisor’s name, not the supervisee’s, so that clients don’t accidentally report billing problems when there are none.
• Avoid delegating work to people who have multiple relationships with the client that would likely lead to harm or the supervisee’s loss of objectivity--for example, avoid using a non-English-speaking person’s spouse as a translator.

CAMFT Resources on Supervision:
“Supervision Basics,” The Therapist, May/June 2014, by Alain Montgomery

“Hiring an Intern in Private Practice, a Win- Win Proposition,” The Therapist, March/April 2017 by Alain Montgomery

CAMFT’s On Demand Learning Library— www.camft.org, under the “Education” Tab

• Supervision Workshop Series
• Professional Private Practice Series

BBS Resources for Supervisors and Registered Associates, Trainees, and Applicants: The following publications are available at www. bbs.ca.gov under the “Form/Pubs” link within the “Applicants” Tab for “LMFT:”

• “Answers to Most Frequently Asked Questions Relating to MFT Trainees and AMFTs”
• “MFT Trainee and AMFT Supervision Information”
• “A Guide to Supervision for AMFTs and Trainees”

5 Document, Document, Document
The following CAMFT Code of Ethics pertain to documentation:

1. Section 3.3 Patient Records: Marriage and family therapists create and maintain records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice.
2. Section 2.4 Maintenance of Patient Records: Marriage and family therapists take appropriate steps to ensure, insofar as possible, the confidentiality of patients is maintained by their employees, supervisees, assistants, and volunteers.
3. Section 1.15 Documenting Treatment Decisions: Marriage and family therapists are encouraged to carefully document in their records when significant decisions are made, e.g., determining reasonable suspicion of child, elder or dependent adult abuse, determining when a patient is a danger to self or others, when making major changes to a treatment plan, or when changing the unit being treated.
4. Section 1.10 Withholding Records/ Non-Payment: Marriage and family therapists do not withhold patient records or information solely because the therapist has not been paid for prior professional services.

Keeping appropriate clinical documentation is key for many different and equally important reasons. Under the California Business and Professions Code it is unprofessional conduct to “[Fail] to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.”5 Remember that clinical documentation can be a therapist’s strongest ally in the face of legal and ethical charges. A lack of documentation—or the wrong kind of documentation—can be detrimental. For example, a well-articulated and documented record could prove invaluable for purposes of consultation, provide the treating provider with information to inform—if not determine—a course of treatment, or serve as a defense tool in a legal or disciplinary proceeding.

Suggested Best Practices:

• Understand a patient’s right to access their records under California and Federal laws.
• Make sure identifying client information is included in the record.
• Document relevant history and risk factors, medical status and attempts to get prior treatment records.
• Document dates of service and fees.
• Include diagnostic impressions, assessments, treatment plans, consultation, summary and testing reports and supporting data, and progress notes. Include not only the treatments chosen, but treatments considered and rejected.
• Include germane information.
• Never alter a record after the fact. You may append additional information to records, but when doing so the record should clearly indicate that the information was added later on.
• Use documentation to your advantage as the process of writing may help crystallize in your mind what they are saying about the clinical issues or problem as well as potential interventions and solutions.

CAMFT Resources on Records and Recordkeeping:

“A Patient’s Right to Access Mental Health Records Under HIPAA,” The Therapist, September/October 2014, by Ann Tran-Lien

“Patient Records Under California Law the Basics,” The Therapist, May/June 2015, by Alain Montgomery

CAMFT’s On Demand Learning Library— www.camft.org, under the “Education” Tab “Using the Language of the Law to Salt & Pepper Your Treatment Records Presented by Dave Jensen, JD, CAMFT Staff Attorney— 6 CE Hours”

Conclusion
Refreshing your knowledge of applicable laws and relevant ethical standards is important to do every so often. In doing so, keep those resources which you find most helpful close by so that you can refer to them easily and that they are readily available when needed.

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Alain Montgomery, is a paralegal for CAMFT. Alain is available to answer member calls regarding ethical and licensure issues.

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Endnotes

¹ Cal Bus and Prof Code, Section 4982 (n)

² Cal Bus and Prof Code, Section 4982 (l)(s)

³ 16 CCR § 1833.1(a)(8) and 16 CCR § 1833.1(a)(9)

⁴ 16 CCR § 1833.1(c)

⁵ Cal Bus & Prof Code §4982(v)

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This article is not intended to serve as legal advice and is 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 this article.