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Check back each month for a new tip to help you navigate the legal and ethical landscape of your practice. To discuss any of the information here please feel free to contact me.

August 2016 - Conversion Therapy in the City of Seattle

Conversion Therapy, which includes any therapeutic efforts to change a client’s sexual orientation or gender expressions, or to reduce a client’s sexual or romantic attractions toward people of the same sex, was recently addressed by the Seattle City Council.

On August 1st 2016, the Seattle City Council passed Council Bill 118746. This Ordinance applies to all health care providers within the city of Seattle. It prohibits the use of Conversion Therapy with any client under the age of 18. The new ordinance also prohibits any advertising of Conversion Therapy services for minor clients within the city of Seattle.

Violation of this Ordinance can result in a fine from $300 to $1,000 for each occurrence, and up to 90 days in prison.

In addition to the City of Seattle, five states, the District of Columbia, Miami, and Cincinnati now prohibit the use of Conversion Therapy with minors clients.

October 2015 - Washington PLLC Law Update

There are several options regarding what type of business entity to create when operating a private practice. One of these options is to form a Limited Liability Company (LLC).

For mental health professionals, a special kind of LLC is required. This special type of LLC is called a Professional Limited Liability Company (PLLC). A PLLC (instead of an LLC) is required any time a company will be conducting a business that requires a license.

The Washington rules regarding the creation and operation of PLLCs was recently updated. The new law will take effect in January of 2016.

There is an important change under this law regarding malpractice insurance. The law now requires that owners of a PLLC must have professional liability insurance for both themselves and for the PLLC. The insurance must provide at least one million dollars of coverage.

August 2015 - Public vs Private Social Media

The standard of care for all mental health professionals requires a distinction be maintained between personal and professional use of social media. In fact, the ethical requirement to keep these two distinct is now specified in the 2014 version of the ACA code of Ethics.

According to section H.6.b of the ACA Code, Counselors must provide their social media use policy to clients. In general, this policy should specify at least two things:
1) The mental health professional’s personal social media presence and professional social media presence are separate (ACA code section H.6.), and
2) The mental health professional does not engage in personal virtual relationships with clients. (ACA Code A.5.e; NBCC Code section 19).

May 2015 - Legislative Change for Supervision

The Washington Department of Health is currently considering making several changes to the code section that applies to LMHCs, LMFTs, and SWs.

The changes would affect sections 134, 234, and 334 regarding approved supervisors.

There are two primary proposed changes to this section. The first change would require a supervisor “to be licensed in the same state” as their supervisee. The second change would require that the supervisory agreement be in writing.

The proposed changes would also add a new section to WAC 246-809 specifying the requirement for Associates to report 18 hours of continuing education with each annual renewal of the Associate credential.

March 2015 - Change to Rule Restricting use of CDP Title

Washington law places some very specific restrictions on the professional use of certain titles. One such restricted title is "Certified Chemical Dependency Professional," or "CDP.”

The rule has been that the title "Certified Chemical Dependency Professional", or "CDP” could only legally be used by 1) a state certified Chemical Dependency Professional, 2) who is employed by a state-approved chemical dependency treatment program.

This rule was recently changed. Now, state certified Chemical Dependency Professionals who are not employed by a state-approved CDP program may also use the title "Certified Chemical Dependency Professional", or "CDP” so long as they are licensed as an ARNP, LMFT, LMHC, ASW, ICSW, Psychologist, Physician, or Physician’s Assistant.

This rule does not restrict mental health professionals with another credential from practicing chemical dependency counseling or treatment without being a CDP so long as such treatment is otherwise within the scope of professional's credential.

February 2015 - Change to Medical Marijuana Advertising Rule

Since 2007, Washington state law has made it illegal for a health care professional to “include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice.”

A few years ago, an osteopathic physician was charged with unprofessional conduct for advertising medical marijuana on a website promoting his services.

In January 2015, however, the Pierce County Superior court ruled that this advertising restriction is unconstitutional and overturned the 2012 physician's misconduct determination.

This court decision may not apply to all health care professionals in the State, and this initial ruling may still be appealed. Therefore care is still warranted when advertising services related to medical marijuana.

This advertising restriction was repealed by the Washington State Legislature in July 2015.

December 2014 - New AAMFT Code of Ethics

As of January 1, 2015, the American Association for Marriage and Family Therapy (AAMFT) has adopted a new ethics code.

This new code is a significant expansion of the existing ethics code that was enacted in 2012 with several new topic being addressed. Among these new topics are standards for the use of technology in therapy, and an expanded explanation of prohibited multiple relationships.

Familiarity with the new AAMFT Code of Ethics is a necessity for all Marriage and Family Therapists. This code is also a valuable resource to identify the standard of care for other licensed professionals who provide counseling and therapy services to families.

November 2014 - Clients’ Social Media Presence

One of the newest ethical standards set forth in the 2014 ACA Code of Ethics prohibits counselors from viewing clients’ social media presence without first obtaining permission from the client.

In essence, section H.6.c of the ethics code recognizes that a client’s social media is personal and private. Just as it would be inappropriate for a clinician to peek in a client’s window, it is now generally inappropriate for a clinician to “Facebook stalk” a client. This new standard is also consistent with Washing State standards for all health care professionals.

In fact, the Washington Department of Health recently sanctioned a physician for sending a Facebook friend request to a patient after conducting a particularly invasive medical procedure.

As mental health professionals, we all have the ethical and legal obligation to use Social Media mindfully, responsibly, and professionally. The best interest of the client should always be our primary focus.

September 2014 - Personal Relationships Rule Revision

The Washington Department of Health (DoH) is currently considering revising WAC 246-16-100 which specifies the rules regarding health care provider sexual misconduct. The DoH is looking to “clarify what acts constitute sexual misconduct by providers in health care professions.”

Currently, the general rule is that health care providers are prohibited from engaging in romantic or sexual relationships with individuals who are current patients/clients or who have been patients/clients during the past two years.

This “two-year” rule does not apply to mental health professionals, however. For Psychologists, the prohibition against engaging in romantic or sexual relationships with past clients lasts for a minimum of five years.

For Mental Health Counselors, Marriage and Family Therapists, Social Workers, Certified Counselors, Certified Advisors, and Agency Affiliated Counselors, the prohibition against engaging in romantic or sexual relationships with past clients lasts forever. That’s right! There is no time limitation. For these license levels, sexual or romantic relationships with former clients are never allowed.

June 2014 - Record Retention

Of course all mental health professionals understand their obligation to maintain client records safely and confidentially. What is often unclear is how long these records must be kept.

There are several answers to this question. First, LMHCs, MFTs, and SWs must keep client records for 5 years after termination. This 5-year standard also applies to Certified Counselors, Certified Advisors and Agency Affiliated Counselors.

The rule for psychologists is slightly different. Psychologists must maintain client records for 8 years. There is also a special rule for Psychologists regarding minor clients. In the case of minors under the age of eighteen, a Psychologist must maintain the records until the client reaches the age of twenty-two or for eight years, whichever is longer.

Lastly, the Washington Medical Records Act requires that all medical records must be maintained for at least one year following certain client authorizations. These include the client’s authorization to disclose the health care information, the client’s request for examination and copying, or the client’s request for correction or amendment.

April 2014 - New ACA Ethics Code

On March 27th, the American Counseling Association released the 2014 version of the ACA Code of Ethics. This new ethics code is a significant change from the last version published in 2005.

Among the updates is an entire section addressing the ethical standards applicable to distance counseling, technology, and social media use by counselors. Consistent with the NBCC Code of Ethics, the ACA Code now requires that mental health counselors provide clients with an explanation of the counselor’s social media policy.

The new ACA ethics code also specifies that personal relationships with current clients via social media are prohibited.

March 2014 - Sexual Orientation Change Therapy

The Washington State House of Representatives recently approved a Bill that would restrict the use of Sexual Orientation Change efforts , also known as reparative therapy or conversion therapy.

The proposed Bill is currently being considered by the Washington State Senate. If approved by the Senate, the Bill will make it unprofessional conduct for a clinician who is working with a client under the age of 18 to undertake any therapeutic efforts to change the client’s behaviors or gender expressions, to reduce the client’s sexual or romantic attractions toward people of the same sex, or to change the client’s sexual orientation.

The Bill specifically does allow clinicians to continue to provide “acceptance, support, and understanding of clients” and “the facilitation of clients' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” with clients of any age.

February 2014 - Confidentiality and Privilege

Confidentiality and privilege are two very important concepts in the field of mental health counseling. While these two concepts are related, there are some important distinctions between confidentiality and privilege.

Confidentiality can be conceptualized as a set of legal, ethical, and professional standards that require a mental health professional to protect against disclosure of their clients’ private information. Privilege, on the other hand, is a much narrower rule. Privilege is simply a rule of evidence in court.

In Washington, the psychotherapist/client privilege says that any information a client provides in confidence to a psychotherapist, for the purpose of treatment, is not admissible as evidence in court.

This psychotherapist/patient privilege was based on case law until 2009 when the rule was codified in a statute.

It is important to note that this privilege applies to “A mental health counselor, independent clinical social worker, or marriage and family therapist licensed under chapter 18.225 RCW”. The privilege does not apply to certified counselors, certified advisers, agency affiliated counselors, hypnotherapists, or chemical dependency professionals. There is a separate provision that specifically provides for the psychologist/client privilege.

January 2014 - Joint Decision Making and Consent for Treatment

The age of consent for outpatient mental health treatment in Washington is 13. This means that clients who are 13 years old or older should be treated as adults regarding the ability to provide independent informed consent for treatment and for the release of their treatment records.

If you are working with a child who is under the age of 13, then you must obtain informed consent from the child’s legal guardian in order to provide treatment or to release the client’s confidential information.

Generally, a child’s legal guardians are the biological parents. In these cases, either parent can consent to the treatment for their child.

However, the situation can be a little more complex if the child’s parents are divorced or legally separated. If there is a court order specifying that the parents share “Joint Medical Decision Making” authority, you must obtain consent from both parents in order to provide treatment to the child or to release the child’s confidential information to a third party.

The courts and the Department of Health generally hold the clinician responsible for inquiring if there is such a court before providing treatment to a minor or releasing a minor’s confidential information.

November 2013 - Requirement to Diagnose

With the recent release of the DSM 5, there has been increased consideration among many mental health professionals regarding the requirement to diagnose.

Under Washington state law, Licensed Mental Health Counselors, Marriage and Family Therapists, Social Workers, and psychologists must document for each client one of the following:

1) The client's presenting problem(s);
2) The purpose of counseling or therapy; or
3) A diagnosis.

It is important to note that Washington state law requires that only one of these three must be documented. However, if you bill a third party (such as insurance) or if you work for an agency, you may be required by contract or policy to provide a diagnosis.

August 2013 - Client Record Fee Change

As of August 1st 2013, the amount healthcare providers are allowed to charge for duplicating client records has been increased.

While clients are guaranteed the right to access their own healthcare records, both HIPAA and Washington state law allow healthcare providers to charge a reasonable fee to cover the costs of copying and mailing records to clients.

Remember, however, that a healthcare provider is not allowed to withhold a client's records based on the client's non-payment of outstanding fees for services.

July 2013 - Associate Licensure Change

A change to the Washington State statute pertaining to renewal of Associate licenses will take effect on July 28, 2013.

Under the previous rule, Licensed Mental Health Counselor Associates (LMHCAs), Licensed Marriage and Family Therapist Associates (LMFTAs), and Licensed Social Worker Associates (LSWAs) could renew their Associate credential a maximum of four times.

The new rule allows LMHCAs, LMFTAs, and LSWAs to renew their Associate credentials a maximum of six times. This change will allow an additional two years for Associates to obtain sufficient supervised experience to be eligible for independent licensure.

June 2013 - Suicide CEU Requirements

As we discussed in the March update last year, the Washington legislature has approved a new CEU requirement for certain healthcare providers to obtain continuing education on the topic of suicide assessment, treatment, and management. This new statue, which was signed into law by the governor on April 25th, applies to all the mental health counseling professions.

The new law requires 6 hours of continuing education on suicide assessment, treatment, and management to be completed every 6 years. A one-time waiver will be available for newly credentialed mental health professionals who can demonstrate having received equivalent training as part of their educational program.

The new requirement counts towards the total number of CEUs already required. That means that the new law does not increase the total number of CEUs required.

The exact details of what courses are acceptable have not yet been determined. The Department of Health is currently working on developing standards and guidelines for the new training. The DoH's deadline to report these new guidelines is December 15, 2013.

If you have any questions about this new requirement, or any other legal issue, feel free to contact me.

May 2013 - Challenging a Subpoena

Receiving a subpoena for a client's record is one of the most challenging legal situations a mental health professional is likely to face.

Upon receiving a subpoena for client records, the first action a mental health professional should take is to immediately notify the client. This is important due to a unique Washington State rule.

In 2002, the Washington State Supreme Court published its opinion in a case called In re Marriage of Folise. In this case, the Court determined that a mental health professional is not allowed to challenge a subpoena for client records. This means that in most situations, only the clients have legal standing to challenge a subpoena for their records.

Because of this rule, it's imperative that you inform your clients as soon as possible when you receive a subpoena for their records. This will allow your client the opportunity to challenge the subpoena.

If you have any questions regarding subpoenas, or any other legal issue, feel free to contact me.

April 2013 - Distance Counseling Update

On March 1st 2013, The National Board for Certified Counselors (NBCC) released a new Policy Regarding The Provision of Distance Professional Services. This policy statement includes a code of ethical standards relating to the provision of distance counseling.

The NBCC code of ethics is not directly applicable to counselors who are not members of the NBCC. However, since the NBCC is one of the first national professional organizations to publish an ethical standard for on-line counseling services, this code may help define the current standard of care for this evolving field.

One of the most significant of the NBCC standards is a requirement for counselors who offer distance or on-line services to document in the treatment record applicable "legal regulations from the state in which the counselor is located as well as those from the recipient's location."

If you have any questions regarding the legal and ethical considerations of on-line or distance counseling, feel free to contact me.

March 2013 - HIPAA Notice Requirement Updates

In January of this year, several provisions of the HITECH Act took effect and added a few new changes to the HIPAA laws. Among these changes are additional requirements regarding the information Covered Entities are required to provide in their HIPAA Rights Notice.

In accordance with these new disclosure requirements, Covered Entities' HIPAA Rights Notices must now include the following:

1) a statement that uses and disclosures of a client/patient's private health information for marketing purposes, or as part of a sale of information, require the client/patient's authorization;
2) a statement informing the client/patient of the right to opt out of receiving fundraising communications;
3) a statement informing the client/patient of the right to restrict disclosure of their private health information to a health plan when the client/patient has paid out of pocket for the health service; and
4) a statement informing the client/patient of the right to be notified if there has been a breach of their protected health information;

If you have any questions about how these updates to the HIPAA notice requirements impact your practice, feel free to contact me.

February 2013 - Financial Disclosure and New CPT Codes

As of January 1st, the AMA has implemented several changes to the Current Procedural Terminology (CPT) codes that healthcare providers must use when seeking reimbursement from insurers.

One major change for mental health providers is that psychotherapy sessions must now be coded as either 30 minute, 45 minute, or 60 minute sessions.

Washington law requires that mental health counselors provide their clients with a disclosure of their financial requirements, specifically to include the cost per session.

It is vital that the billing information you provide to you clients in your Disclosure and Informed Consent form is consistent with the CPT code you are using for reimbursement. For example, you may have reimbursement denied if your Disclosure and Informed Consent form specifies 50 minute sessions, yet you code sessions for reimbursement as 60 minute sessions.

If you have any questions regarding billing or disclosures, feel free to contact me.

December 2012 - Multicultural Competency

In State v. Sisouvanh, the Washington State Supreme Court recently had the opportunity to consider the extent to which multicultural competency is required to meet the stand of care in forensic psychology.

The Court reaffirmed the requirement for psychologists at a minimum to "acknowledge the importance of cultural competency" and "to sufficiently account for the need for cultural competency" in their professional work.

While this decision specifically applies to forensic psychological evaluations, this standard would likely be extended to all mental health professionals.

If you have any questions regarding the standard of care regarding multicultural competency, feel free to contact me.

November 2012 - Conversion Therapy and Standard of Care

Sexual Orientation Conversion Therapy, also known as Reparative Therapy, has long been a controversial therapeutic approach. This type of therapy, which is defined as applying interventions intended to change a client's sexual orientation, is in contrast to therapies that focus on supporting clients' autonomy, assisting clients to understand their sexual orientation, and helping to facilitate clients' self determination.

In September, the State of California enacted a law which specifically identifies Sexual Orientation Conversion Therapy as unprofessional conduct when used with clients who are under 18 years of age. While this California law does not directly apply to Washington mental health professionals, it may serve to further define the current Standard of Care.

In addition, many national mental health organizations have published official positions warning that Conversion Therapy may fall outside of the accepted standard of care. These include the APA (both psychology and psychiatry), ACA, NASW, AMA, and ASCA.

Remember, the standard of care generally requires that mental health professionals select therapeutic interventions that are in the individual client's best interest and that support the client's autonomy.

If you have any questions regarding identifying and practicing within the applicable standard of care, feel free to contact me.

October 2012 - Medical Marijuana and Unprofessional Conduct

Washington's Medical Cannabis law recognizes the potentially therapeutic benefits of the use of marijuana. The law also offers state protection against criminal prosecution for some specific medical uses of marijuana and for a limited range of medical professionals to recommend such therapeutic use.

Most credentialed mental health professionals in the state of Washington are not authorized to recommend medicinal marijuana. However, it is important for all professionals holding health care credentials to understand the ramifications of their own use of medicinal marijuana.

Misuse of any drug, even prescription or doctor recommended, could be considered unprofessional conduct. Medicinal use of marijuana by a healthcare professional, in full compliance with all applicable Washington state laws, would most likely not be viewed as unprofessional conduct in violation of the Uniform Disciplinary Act. However, it is still considered a federal crime that can be enforced by the DEA and the US Department of Justice. In addition, the Washington Supreme Court has ruled that medicinal use of marijuana can legally be the basis for termination of employment.

If you have any questions regarding how Washington's Medical Cannabis laws might impact you professionally, feel free to contact me.

August 2012 - Update to Mandatory Reporting Requirement

As of June 7th, the State of Washington has updated the mandatory reporting requirements for suspected child abuse or neglect under RCW 26.44.030.

The change now expands the list of mandatory reporters to include all employees of administrative, academic, or athletic departments of institutions of higher education - including both public and private institutions.

In addition, student employees are specifically included in this category of new mandated reporters.

Understanding the scope of this expansion of Washington's mandatory reporting is especially important for anyone working in an academic environment.

Feel free to contact me if you have any questions regarding the scope of Washington's mandatory reporting laws, and how they may apply to you.

July 2012 - Music Therapist Certification Proposal

The State of Washington is currently considering creating a new certification for Music Therapists. If you utilize music therapy techniques in your practice, this new law may require you to become state certified.

This certification is intended to officially recognize music therapy as a valid research-based health care service. If enacted, the Department of Health will establish training and continuing education requirements for music therapists, define the music therapy scope of practice, and create an ethics review procedure for music therapy.

The Department of Health will be holding a hearing on August 20th 2012 to provide information and receive comments from the public. You can find more information about the proposed certification and the hearing on the Department of Health's website.

Feel free to contact me if you have any questions about how this proposal may impact your practice.

June 2012 - Unpaid Fees and Client Records

The Washington Examining Board for Psychology recently discussed the question of mental health professionals charging clients fees to access their medical records. Specifically, the Board considered whether or not a mental health professional could require a client to pay outstanding bills for unpaid fees before releasing that client's record. The answer is no.

Clients' access to their own records is guaranteed by HIPAA and Washington law. Under RCW 70.02.080, a healthcare provider must provide a client access to their own record. However, the healthcare provider may charge a reasonable fee. Similarly, the Federal HIPAA regulations, require the same disclosure, and allow the healthcare provider to impose a reasonable fee to cover the cost of copying and postage.

One potential exception may apply if you are creating a report or evaluation for a client. In this case, you may enter into an agreement with the client that all outstanding fees must be paid in full before you will create the report or conduct the evaluation. Once a report has been created, however, it is part of your client's medical record and you cannot then withhold it for non-payment of fees.

If you have any questions about the rules regarding client records and unpaid fees, feel free to contact me.

May 2012 - Associate Supervision Requirements - Part II

Last month we discussed Washington's post-graduate supervision requirements for full licensure as a LMHC or LMFT. This month we will look at the requirements for social workers.

In order to become fully licensed, Licensed Advanced Social Worker Associates (LASWAs) must complete 3,200 supervised hours, of which at least 40 hours must be in one-on-one supervision and fifty hours may be either one-on-one or group supervision.

Similarly, Licensed Independent Clinical Social Worker Associates (LICSWAs) are required to have 4,000 hours of supervision with 60 hours being in one-on-one supervision. An additional 70 hours must be either one-on-one supervision or group supervision.

For both LASWAs and LICSWAs, a group is defined as "no more than six licensure candidates" and one-on-one supervision means "one supervisor and one licensure candidate."

Lastly, it's important to remember the limitations on who can act as a licensure candidate's supervisor. A blood or legal relative, cohabitant, or peer of the licensure candidate, or anyone who has acted as the licensure candidate's therapist within the past two years is not eligible to serve as that person's supervisor.

April 2012 - Associate Supervision Requirements - Part I

Washington requires that all licensed mental health counselors undergo a period of post-graduate supervision before being fully licensed. While the supervision requirements are similar for the different mental health counselor licenses, there are some key differences.

In order to become fully licensed, Mental Health Counselor Associates (LMHCAs) are required to obtain 36 months, or 3,000 hours, of supervised post-graduate mental health counseling. The rule specifies that at least 100 of these hours must be spent in "immediate supervision." For LHCAs, the definition of immediate supervision is "one supervisor and no more than two licensure candidates."

The rule is slightly different for Licensed Marriage and Family Therapist Associates (LMFTAs). While LMFTAs must also have 3,000 hours of supervised post-graduate experience, two hundred of these hours must be in supervision. At least one hundred of the supervised hours must be one-on-one supervision and the remaining hours may be either one-on-one supervision or group supervision. The definition of one-on one counseling is the same for LMFTAs and LMHCAs, and group counseling is defined as "one supervisor and no more than six licensure candidates."

It is vital that supervisors, and associates who are under supervision, understand the particular supervision requirements for the mental health counselor license they are pursuing or supervising.

Next month's tip will address the requirements for Social Workers. Until then, feel free to contact me if you have any questions about the rules regarding supervision.

March 2012 - New Suicide Intervention Training Requirement

In specific consideration of the elevated risk of suicide faced by Washington's many combat veterans, the Washington State legislature has proposed legislation that would create a new requirement for suicide assessment, treatment, and management training. These new requirements are scheduled to take effect in January 2013.

This proposed legislation will apply to a wide range of mental health professionals, including CDPs, Certified Counselors and Advisors, and all licensed mental health professionals. The requirements will add both initial education requirements and continuing education requirements for the specified credential holders.

If you would like to share your feedback about this proposed change, contact your Washington State legislator, or your Washington State professional association. You can also contact the Washington Professional Counselors Association as a professional association on the forefront of this issue.

If you have any questions about how this new legislation may affect your practice, feel free to contact me.

February 2012 - Clients, Key Parties, and Sex

The personal relationships between mental health professionals and their clients is one of the most thoroughly regulated aspects of the mental health profession. Of these regulations, the prohibition against sexual relationships is the most absolute.

While it may seem obvious what is prohibited when we talk about a sexual relationship with a client, there are three aspects of the rule that may be surprising.

First, it's important to understand what Sex means. Under the regulation, sex includes a wide range of activities including discussing the possibility of dating a client or a Key Party, or terminating a professional relationship for the purpose of pursuing a romantic relationship with a client or Key Party.

Second, who is this Key Party anyway? A Key Party is defined as anyone who would reasonably be expected to play a significant role in the client's health care decision making process. This means that mental health professionals may not enter into a romantic relationship with their clients, nor with anyone else who has a key relationship with their clients.

Third, the WAC code that deals with sexual misconduct specifies that the prohibition against sex with a client last for two years after the professional relationship is terminated. This section of the code applies to all health care professionals. The code section that applies this rule to mental health providers, however, specifically did not adopt the "two year rule."

The bottom line is that a mental health professional is indefinitely prohibited from entering into (or even discussing the possibility of) a romantic or dating relationship with anyone who could reasonably be expected to have played a significant role in the client's health care decisions.

January 2012 - HIPAA Criminal Penalties

Since 2009, various changes to the HIPAA regulations have been phased in by the HITECH Act. Among these changes is the possibility of criminal liability for HIPAA violations. Such criminal liability applies to both Covered Entities and their Business Associates as well.

In addition, the HITECH Act now requires the US Department of Health and Human Services (HHS) to perform periodic audits, and to launch formal investigations into every complaint HHS receives. Furthermore, if HHS finds that a Covered Entity's violation is due to willful neglect, the imposition of a civil penalty is required.

As Federal and State enforcement continues to be strengthened, now is the time to make sure you can document that your practice is HIPAA compliant.

November 2011 - DoH Fee Changes and HEAL-WA

Several changes have been made to the licensing fee structure for some healthcare professionals. These changes will take effect on December 1, 2011.

Specifically, WAC 246-809-990 will be updated to reflect an increase of $25 for LMFTs to cover access to the HEAL-WA database.

The HEAL-WA database provides access to a wide range of evidence-based resources for healthcare providers. The database is provided at no cost by the WA DoH and UW to members of specific health care professions who are credentialed by the state of Washington. These professions include, Mental Health Counselors, Clinical Social Workers, East Asian Medicine Practitioners, Psychologists and Naturopaths.

Making use of the resources available through HEAL-WA is one of the best and most economical ways to protect your practice by remaining current on the applicable standard of care.

October 2011 - Updates of Legal Definitions

Two important legal definitions have recently been updated and clarified by the state of Washington.

First, the Washington Examining Board of Psychology recently responded to a question regarding whether a psychologist-client relationship is created when a psychologist sees a potential client for the first time without charging a fee. The Board affirmed that in such a situation, a client relationship does exist. In this case, the client would be required to complete all disclosure forms and would be entitled to the same levels of confidentiality as any other client.

While this clarification does not represent a change in the law, it is important to remember that in almost all cases the counselor/client relationship, and all the associated legal responsibilities, begins whenever a potential client contacts you for the purpose of obtaining professional services. This is true for all levels of mental health counselors.

Second, as of August 2011, the definition of "Agency" in RCW 18.19.020 has been updated to include federally recognized Indian tribes. This means that Indian tribes within Washington now have the authority to employ Agency Affiliated Counselors.

September 2011 - Referral Compensation Prohibition

Washington law prohibits compensation of any kind in exchange for referrals to, or from, a health care provider. This prohibition specifically applies to mental health professionals through the Uniform Disciplinary Act.

The law prohibits both direct and indirect compensation for referrals. For example, the rule would be violated by an agreement between mental health counselors A and B in which A will refer all borderline clients to B, and B will refer all PTSD clients to A.

Paragraph 6.07 of the ethical code of the American Psychological Association (APA) also prohibits giving or receiving compensation for client referrals. The rationale behind these rules is to avoid the ethical conflict between a referral that is in the client's best interest and one that is in the financial interest of the professional.

A health care professional who violates the compensated referral prohibition may be subject to various administrative actions and criminal punishments.

August 2011 - State Enforcement of HIPAA

Various provisions of the Health Information Technology for Clinical and Economic Health (HITECH) Act have been periodically phased in since 2009 to modify the HIPAA rules.

One such provision gives State Attorneys General the authority to bring civil actions for violations of the HIPAA Privacy and Security Rules. The fines resulting from such State actions may be retained by the State rather than by the Federal Government.

The US Department of Health and Human Services (HHS) has begun a program to provide training to State Attorneys General to use this new authority to enforce the HIPAA Rules - specifically to investigate violations and to seek monetary settlements for damages.

The HHS's West Coast training was completed in San Francisco last month. What this means is that there may be a significant increase in HIPAA compliance audits as States recognize this significant new source of potential revenue. In fact, on July 6th the State of Connecticut announced a $250,000 settlement for alleged HIPAA violations.

June 2011 - Apologies and Liability

Nearly all heath care providers will tell you that a malpractice suit is one of their biggest professional concerns. While it is prudent to take affirmative steps to limit your legal liability, it's also easy to take this too far. For example, the conventional wisdom says that you can never apologize to a client when you make a mistake since an apology would mean you are admitting legal liability.

Luckily this is not the case in Washington. If a health care provider is sued for malpractice, RCW 5.64.010 specifically prohibits the use of the health care provider's expressions of apology, sympathy, or compassion as evidence of malpractice.

The rationale behind this statute is to encourage health care providers to maintain an open, candid, and caring relationship with their clients and patents.

There are a few technical requirements that must be met in order to be covered by the statute. Among these requirements is that the apology must have been made to the injured person within 30 days of the injury, and that the apology must relate to the alleged act of malpractice.

May 2011 - Testimony in Court

The thought of taking the witness stand in a court proceeding is a common source of unease for mental health professionals. A general understanding of the testimony process, however, can go a long way towards reducing those feelings of unease.

There are two main types of legal testimony - testimony as a fact witness and testimony as an expert witness. A fact witness is a person who provides information about the facts that are in dispute in a particular court case. An expert witness, on the other hand, is a person who does not have any knowledge about the facts of the specific case, but is able to provide general expert knowledge to the court.

If a court wants you to provide testimony as a fact witness, you will receive a subpoena and be required to appear in court without being paid for your time. On the other hand, if a party to a court case wants to have you provide expert testimony, you are free to charge a fee for your appearance or to decide not to participate at all.

In either case, it is imperative that you understand which type of testimony you are expected to provide, and how to best protect the interests of your client.

Feel free to contact me if you have any questions about your rights and obligations with respect to subpoenas or testifying in court.

April 2011 - Restrictions on the Use of the CDP Title

Washington places some unique restrictions on the use of the title "Certified Chemical Dependency Professional", or "CDP". The particular restrictions can be found in RCW 18.205.040

In order to obtain a CDP credential, an applicant must complete the specified coursework, log a specific number of hours of supervised practice, and pass an examination. Even after obtaining the credential, one may only use the CDP title if employed by a state-approved chemical dependency treatment program. That means if you have a CDP credential, but are in private practice, you are not allowed to use the CDP title.

This rule does not restrict mental health professionals with another credential (e.g., LMHCs, LICSWs, or LMFCs) from practicing chemical dependency counseling or treatment so long as such treatment is otherwise within the scope of the credential.

While a certified CDP may not use the CDP title in conjunction with a private practice, there is no prohibition against specifically advertising your expertise, experience or training in the treatment of chemical dependency. It's just the specific CDP title that you can't use.

Feel free to to contact me if you have any questions about use of the CDP title.

March 2011 - DoH Clarification of CEU Requirements

The Washington Department of Health (DoH) recently clarified the rule that requires applicants for initial licensure as an LMFT, LMCH, LASW or LICSW to complete 36 hours of continuing education prior to full licensure - 6 of which must be in professional ethics. Even though this rule was enacted in 2008, the DoH was aware of a continuing widespread misperception that Washington did not require continuing education until after full licensure.

It is important that anyone supervising a licensure candidate, or applying for initial licensure, is aware of this requirement. You can read the rule itself at in RCW 18.225.090 Applicants applying for the associate credential, however, are not required to complete the continuing education requirement prior to licensure as an associate.

Remember, there is no requirement to submit documentation of CEUs to the DoH, unless specifically requested by the DoH. Similarly, applicants for initial licensure are not required to submit documentation of their CEUs. However, new applicants should be prepared to provide documentation if requested by the DoH.

Feel free to to contact me if you have any questions about Washington's continuing education requirements.

February 2011 - Psychotherapy and Tax Deductions

As a mental health counselor, you know the importance of receiving your own mental health counseling. It's often considered part of your professional responsibility to seek counseling to help you process your sessions with your clients, deal with transference issues, and maintain your own mental health.

It seems intuitive, therefore, that the costs of this mental health counseling should be tax deductible as a business expense. In fact, I have recently talked to many mental health professionals who are absolutely convinced that this is the case. So, can you deduct your own counseling from you taxes?

While generally psychotherapy may be considered a deducible expense under certain situations, it really depends on many different factors specific to your individual situation. These factors include how you conduct your business and what type of counseling you are receiving.

Typically, any counseling you are receiving in a strictly professional capacity is often deductable as a business expense. Examples of this would be counseling for supervision, consultation, training or professional development.

On the other hand, any counseling you are receiving in a personal capacity, would be considered a personal activity rather than a business activity, and would therefore not be deductible as a business expense. This would include counseling to address personal issues or concerns.

For more information, the IRS provides some great information about what can be deducted as a medical expense, and what can be deducted as a business expense.

January 2011 - Pre-Payment of Client Fees

If you accept pre-payments or advanced fees from clients as part of your practice it is important to remember that the prepaid funds remain your client's property until you have actually earned the fees.

Washington law requires you to disclose your prepayment policy in your Client Disclosure and Agreement form. You can read more about this requirement in RCW 18.225.100 RCW 18.19.060 WAC 246-809-710 WAC 246-810-031. Your client disclosure must fully explain your advanced fee or pre-payment policies, including the conditions and process by which you will refund fees to your clients.

This is important because by maintaining client funds you create a fiduciary duty to your client. Since any pre-paid fees remain your client's property until you have earned the payment, you are responsible for maintaining your client's funds separately from your own funds. In addition, you should keep the client funds in an interest bearing account with the interest accrued to your client's account, not your own.

If you have any questions about your legal responsibilities regarding client funds, feel free to contact me.

December 2010 - Legal Considerations of Advertising and Marketing

The Uniform Disciplinary (UDA) addresses unprofessional conduct including prohibiting "all advertising which is false, fraudulent, or misleading."

While almost no mental health professional would intend to employ false advertising, there are a few dangerous areas of well-intentioned marketing to keep in mind.

For example, it's important to be very careful about the initials you use after your name. Initials that refer to anything other than your degree or your license could be considered misleading. Your specialty, additional training you've received, or a specific modality you use may be meaningful to describe your practice. However, if the acronym used after your name could be interpreted to imply that you have an additional degree or license, it could be a UDA violation.

Similarly, always be careful about language that could be interpreted as implying that your clients can expect a certain outcome. You may be confident in your abilities, but what you intend as reassuring confidence could be interpreted as a false guarantee.

If you have any questions about keeping your marketing efforts in line with the UDA, feel free to contact me or check out our new course: The Basics of Online Marketing for Mental Health Professionals.

November 2010 - HIPAA and Electronic Records

The HITECH Act has phased in several new changes to the HIPAA regulations for 2010. While HIPAA presently does not require covered entities to maintain electronic client records, there are some new requirements for covered entities who chose to do so. If you do keep electronic client records, the HITECH Act now requires you to provide your clients with electronic access to their records. You may always offer your client a paper copy, but clients have the right to insist on electronic access to their electronic health records. Remember, your clients still generally have the legal right to access the information in their record. This is true regardless of whether the record is maintained electronically or in paper form.

October 2010 - Professional Wills

No one likes to think about worst case scenarios, but just like having insurance, a Professional Will is often a prudent way to plan for unlikely events. Without appropriate planning a sudden or unexpected disability or incapacity can leave a mental health professional ethically and legally vulnerable.

A Professional Will is a document that specifies the details of the plan you have developed to ensure prompt and effective continuation of care for your clients, and to ensure appropriate security of, and access to, client files. A Professional Will is a relatively easy way to make use of a little preplanning to ensures that you continue to fulfill your legal and ethical professional requirements.

Having an established plan to assure safe, confidential storage, disclosure, or disposal of records in such cases is required under Washington law, and is specifically addressed in the APA's 2010 Ethical Code of Conduct 6.02(C).

No standardized one-size-fits-all Professional Will is suitable for all therapists or all situations. It's important to consider your own practice, clients, resources, and circumstances. There are, however, some tips everyone should consider when creating a Professional Will:

1. Your Professional Will needs to be durable.
Your professional will needs to contemplate two related, yet legally separate, situations. First, your professional will needs to designate someone who can act for you in case of your death. Second, your Professional Will needs to designate someone who can act on your behalf if you are still alive, but mentally incapacitated.

2. Think carefully about who you designate to act on your behalf.
Your designee should be someone you can trust to professionally and efficiently contact your clients, respond to requests for client records and to assist your clients find referrals if necessary.

It might seem obvious, but it is also important to designate someone with whom you maintain regular contact so that your designee will know when his or her assistance is needed.

Life is unpredictable, and your Professional Will needs to be flexible enough to respond to the unknown. For example, your designated executor may be unable or unwilling to act on your behalf for any number of reasons. It is important to have a second and third designee, each ready to step in if necessary.

3. Will you financially compensate your designee? If so, is your Professional Will coordinated with your personal estate plan?
You may want to allow compensation for the person you designate to act on your behalf. If so, you should clearly specify how your designee will be compensated in your personal estate plan

As an alternative to monetary compensation, you may want to consider a reciprocal agreement. This is where you and one or more other professionals designate each other to act on the behalf of the others in case of incapacity.

4. Provide access to your office and files.
Make sure to specify to you designee how to obtain access to your office, your client files, and other necessary information. You may need to provide computer passwords, voicemail access, alarm codes, etc.

You can provide access to your designee, or you can tell your designee how to obtain access if it becomes necessary. For example, you can give you designee a key to your office, or you can tell you designee where you keep your spare key and how to obtain it. You may need to specify in your client records how your designee should contact a specific client if necessary. For example, for confidentiality reasons you may not want your designee to mail a letter to, or to call, a client's home.

5. Provide for informed consent.
It is often a good idea to inform you clients through your disclosure form that you may have a third party to access their files, contact them, and make referrals, in case you are incapacitated.

If you'd like more information about a Professional Will, feel free to contact me.

September 2010 - HIPAA Business Associate Agreements

Under the HIPAA law, health care professionals must have a Business Associate agreement signed by anyone who might have access to their client's information.

This requirement for Business Associate agreements applies to any person or agency to whom you might grant access to any of your client information. This includes outside billing companies, accountants, attorneys, supervisors or even your consultation group.

The HITECH Act has also phased in several additional requirements to HIPAA. As of February 17th 2010, Business Associates now have the obligation to directly notify clients of any privacy breach for which they are responsible.

The Business Associate requirement is especially important for counselors in that it often applies to the supervisor/supervisee relationship. If you have a supervisor, you should have a HIPPA Business Associate agreement signed by your supervisor in each of your client's files.

Even though the legal obligation to obtain the signed agreement is on the supervised counselor, if you are a supervisor, you should make sure that you have signed a HIPPA Business Associate agreement for your supervisee.

If you have additional questions, feel free to contact me.

August 2010 - Client Consent to Disclosure Forms

In your role as a counselor, you may disclose confidential client information only under certain cirumcstances. The most common such circumstance is when clients authorize (or request) that you disclose their confidential information. In this situation you need to have your clients sign a written Disclosure Authorization specifying what information they want disclosed and to whom they want it disclosed. The Disclosure Authorization must be maintained in your client's record.

In addition, even though each Client Disclosure Authorization must have an expiration date, there is no general rule regarding when they must expire. The one exception is if a client authorizes disclosure to their employer, or to their financial institution, for any reason other than payment. In this case, the authorization must expire no later than 90 days after the date of signature.

RCW 70.02.030 describes the requirements for Client Disclosure Authorizaitons.

July 2010 - Update to the WA Mental Health Parity Act

As of July 1, 2010, the Washington State Mental Health Parity Act of 2005 no longer allows any Covered Health Plans to require that separate deductibles be met for mental health services and other health services. All health services must now count towards one family or individual deductible.

In addition, on July 1st, covered health plans must make sure that any treatment limitations or financial requirements are the same for mental health, medical, or surgical services. These new rules apply to Covered Health Plans issued on or after July 1, 2010. Covered Health Plans include:

- Commercial group insurance plans regulated by the Washington State Insurance Commissioner and offered by an employer of more than 50 employees;
- All state employee health plans offered by the Public Employees Benefits Board, administered by the Washington State Health Care Authority; and
- Washington State Basic Health.

There are several types of health insurance plans that are not considered Covered Health Plans, and may not be subject to the new rules. These include:

- Self-insured plans;
- Federal programs, including Medicare, Medicaid, Tricare, and the Federal Employees Health Benefit Program;
- Commercial group health insurance plans offered by companies with 50 or fewer employees; and
- Health Insurance policies purchased by individuals.

Covered Health Plans may still require that mental health services be medically necessary as determined by the medical director if there is a comparable requirement for medical and surgical services.

As a mental health provider, your clients may ask you about potential changes in their insurance coverage. If you have additional questions, feel free to contact me.

June 2010 - Maximum HIPAA Fines Increased

New for 2010: The HITECH Act has amended the fines that the governement can impose for a violations of HIPAA regulations. The maximum fine is now $1.5 million. If you're not sure about your HIPAA compliance, contact me and we'll make sure you're up to date.

May 2010 - Informed Consent Forms

Washington state law requires that the patient disclosure and consent form you keep in your patient file must be signed by both your patient and by you.

April 2010 - Websites and HIPAA Notificaiton

HIPAA regulations requires that if you are a Covered Entity, and you have a website, you MUST prominently post you HIPAA disclosure document on your website. This means most therapists must have a link to their HIPAA disclosure form on their main webpage.