Avoiding Liability Bulletin – January 2006

… One of the issues that therapists and counselors face when the patient is a child involves the right of the parents to access the treatment records of the minor. The right of access by the parents, and the nature and extent of any such access, is typically determined by state law, even for those who are “covered providers” under HIPAA. State laws vary widely with respect to parental access issues. Suppose that the patient is an eleven year old girl and that the father has telephoned the therapist and demanded a copy of the girl’s records within five days. Suppose further that the therapist believes that providing the records to the father would be harmful to the patient. May the therapist deny the request?

In order to respond appropriately, therapists and counselors must have a thorough knowledge of the provisions of state law or regulation. For example, in one state the therapist is not only allowed to deny a parental request for the records of a minor when the therapist believes it would be harmful to the minor (either physically or psychologically), but is essentially required to deny the request. In that state, the therapist must also deny the parental request if he or she believes that access to the records would have a detrimental effect on the therapist’s professional relationship with the minor (a broad standard). Additionally, that state’s law requires that requests for records be made in writing, so the therapist is not under a duty to comply, assuming that there is no other reason for denial, until a written request is received. Most state laws allow a longer period of time than five days in which the therapist must provide a copy of the records.

What is the law in your state and for your licensure? Find out now, before you are faced with a request that you need to respond to in a relatively short time frame.

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About the Author

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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