Transcript ethics code. - Tennessee Psychological Association

Ethics & the Law
Review 2012
Jim Brown, Ph.D.
Les Kertay, Ph.D., ABPP
Tennessee Psychological Association Annual Convention
Nashville, Tennessee
November 3. 2012
TPA Ethics Committee
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Jim Brown, Ph.D., Chair
Les Kertay, Ph.D., Chattanooga
Wyatt Nichols, Ph.D., Memphis
Ramsey McGowen, Ph.D., Johnson City
Ed Smith, Ph.D., Chattanooga
Alice Garland, Ph.D., Nashville
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Standard Disclaimer
• This consultation is provided as a service of the
Tennessee Psychological Association Ethics
Committee. Please be aware we cannot provide
legal advice. The information provided in this consult
is accurate, to the best of our knowledge, but is not
an official position of the Ethics Committee or the
Tennessee Psychological Association. You are not
required to accept or follow any recommendations
given by the Ethics Committee. Ultimately, as a
licensed psychological practitioner, you are
responsible for your actions.
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Agenda
• Federal Laws
• State Laws
• Rules and Regulations of the Board of Examiners in
Psychology
• APA Ethics Code
• Technology
• Risk Management
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Resource Materials
• APA Ethics Code
• APA website (HIPAA, HITECH)
• Tennessee Code Annotated
• http://www.tennessee.gov/
• http://www.lexisnexis.com/hottopics/tncode/
• BOE Rules and
Regulationshttp://health.state.tn.us/Boards/Psycholog
y/
• Assessing and Managing Risk in Psychological
Practice:An Individualized Approach. Bennett,
Bricklin, Harris, et al.(APAIT) The Trust.
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Ethics and the Law 2012
ASSESSING & MANAGING RISK
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Assessing & Managing Risk
• Assessing and Managing Risk in Psychological
Practice: An Individualized Approach
• Reviewed an "old" model for risk management
• focused on adherence to rules and laws
• Identifies a "more advanced model" of risk
management
• affirms the need to know and follow rules / laws
• recognizes potential conflicts within the "controlling" rules
• focuses on utilizing "moral principles" of ethics code to
resolve conflicts
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Knapp and VanderCreek
(2005)
• Ethics code does not provide answers to every
situation / conflict
• EC uses terms like "reasonable" or "as appropriate”
• EC may be silent regarding emerging areas of
competence
• EC does not clearly address conflicts between EC and
laws or organizational policy
• EC does not address conflicts between ethics code
standards
• EC does not prescribe / forbid any "higher" standards
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Beauchamp and Childress
(2002)
• Principles of Biomedical Ethics (2002)
• Recent example of effort to identify underlying ethical
values
• APA ethics code development driven by similar
concept of "underlying principles" (values)
• Effort to identify basic values / principles
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Autonomy
• Respect for humans as free moral agents
• Right to decide for themselves
• Free from control of others (including psychological
practitioners)
• With sufficient understanding to allow meaningful
choice
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Beneficence
• Help others
• Do good
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Non-Malfeasance
• “Do no harm” intentionally
• Do not impose risks of harm without permission
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Justice
• Respect for people's rights
• Respect for laws
• "Fairness”
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APA Guiding Principles of the
Ethics Code
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Beneficence and Non-Malfeasance
Fidelity and Responsibility
Integrity
Justice
Respect for People’s Rights and Dignity
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Principle A: Beneficence &
Non-Malfeasance
• Psychologists try to:
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benefit those with whom they work
do no harm
safeguard the welfare and rights of others
resolve conflicts, seeking to avoid or minimize harm
avoid misuse of professional skills or influence
be aware of effect of personal issues on others
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Principle B: Fidelity &
Responsibility
• Psychologists try to:
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establish relationships of trust
be aware of responsibility to society / community
uphold professional standards of conduct
clarify professional roles and obligations
accept responsibility for behavior
avoid exploitation or harm
consult, refer, cooperate with others for best interests of
clients
• contribute a portion of professional time pro bono
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Principle C: Integrity
• Psychologists seek to:
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promote accuracy, honesty, and truthfulness
not steal, cheat, engage in fraud, misrepresent fact
keep promises; avoid unwise or unclear commitments
minimize mistrust / harm arising from "ethical" use of
deception
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Principle D: Justice
• Psychologists:
• recognize fairness entitles all persons to access /
benefits of psychology
• minimize unjust practices due to bias, limits of
competence
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Principle E: Respect for
People’s Rights & Dignity
• Psychologists:
• respect the dignity and worth of all people
• respect the rights of privacy, confidentiality, selfdetermination
• seek to protect rights and welfare of those with impaired
autonomous decision-making
• are aware / respect cultural, role, individual differences
• try to eliminate biases affecting their work
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APAIT risk management model
• Focuses on utilizing moral principles when seeking to
resolve conflicts between "rules”
• Encourages the process of logical thinking regarding
values
• Identifies primary elements of risk management that
utilize the principles
• informed consent
• Documentation
• Consultation
• Seek to "maximize adherence to a dominant ethical
principle while minimizing harm to competing
principles".
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Ethics and the Law 2012
APA ETHICS CODE
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1.02
• 1.02 Conflicts between Ethics and Law, Regulations,
or Other Governing Legal Authority
• Old: "if… ethical responsibilities conflict with law,
regulations, other governing legal authority…
• make known commitment to the ethics code…
• Psychologists may adhere to the requirements of
law… authority.”
• New: "… clarify nature of the conflict…
• take reasonable steps to resolve…
• Under no circumstances may this standard be used
to justify or defend violating human rights."
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1.03
• 1.03 Conflicts Between Ethics and Organizational
Demands
• Old: "… if conflict…
• clarify nature of conflict…
• make known commitment to the ethics code…
• To the extent feasible, resolve conflict in a way that
permits adherence to… ethics code."
• New: "… if conflict…
• take reasonable steps to resolve…
• Under no circumstances may the standard be used
to justify or defend violating human rights."
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Example 1
• Patient with multiple severe health problems,
including a number of potentially lethal ones (if not
treated). Patient comes to therapy with depression
and poor quality of life. Patient chooses to stop
taking medications for those health conditions,
seriously threatening her life by the decision.
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What are the relevant ethical codes?
What are the relevant laws?
What are the relevant ethical principles?
What are potential good quality of care / risk
management procedures?
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Example 2
• You evaluate and begin to treat a new patient. You
belatedly realize the patient is the soon-to-be exhusband of an existing patient.
• What are the relevant ethical codes?
• What are the relevant ethical principles?
• What are potential good quality of care / risk
management procedures?
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Ethics and the Law 2012
BOARD OF EXAMINERS
RULES & REGULATIONS
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1180-1-06 Patient Records
• (a) Duty to maintain records
• every patient
• every service / consultation
• (b) "Notice" to patients
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within 30 days of "notice" requirement
publication in a newspaper
OR
posting at practice location
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1180-1-06 Patient Records
(cont)
• (d) Transfer of Records
• death or retirement of practitioner
• all patients seen in last 18 months/2 visits "notified”
• inform patients copies of record can be sent to new
practitioner by patient authorization
• departure from a practice group (death, retirement,
departure)
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governed by group contract
controller of records must do "notice”
18 month / 2 visit rule
informed patients of practitioner's new address, opportunity
to transfer treatment/records (unless prohibited by contract)
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1180-1-06 Patient Records
(cont)
• (e) Sale of Psychological Practice
• ensure transfer of records to practitioner with equal
standards of confidentiality
• "notice" to patients regarding sale
• patient given opportunity to transfer records to another
practitioner
• 18 month / 2 visit rule
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• (f) Abandonment of Records
• death is not abandonment
63-11-215 requires provisions for security, transfer, and
availability of patient records at death
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1180-1-06 Patient Records
(cont)
• (g) Retention of Records
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not less than 7 years from last contact
incompetent patient records retained indefinitely
records of minors: 7 years or age 19 (the longer)
no destruction of records while involved in a dispute
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• (h) Destruction of Records
• no record "singled out" for destruction
• destruction only in the ordinary course of business, by
established policy
• destruction by burning/shredding; maintain confidentiality
• record time, date, circumstances of destruction
• maintain record of destruction
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1180-1-08 Continuing
Education
• 40 hours of CEU's
• 9 hours: Type I
• 9 hours: Type I or Type II
• 22 hours: Type I, Type II, or Type III
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• "Jurisprudence and Ethics": 3 hours
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TCA title 63
"AND"
BOE Rules and Regulations
APA ethics code
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• CEUs every 2 calendar years
• January 1-December 31 PRIOR to renewal date
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BOE "policy statement"
regarding Jurisprudence and
Ethics
• "Jurisprudence" requirement can be met by:
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reading and discussing with colleagues
TCA 63, chapter 11 and BOE Rules and Regulations
written statement attesting to "discussion”
date, names of licensed individuals in the discussion
signed by licensee
1 hour CEU credit (Type III)
still need "ethics" CEU (2 more hours)
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Documentation of CEU
Completion
• keep documentation for 5 years
• prepare summary report annually
• make documentation available to BOE on request
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1180-1-15 Advertising and
Other Public Statements
• Definition: public statements related to:
• professional services, products, publications, or to the
field of psychology
• paid or unpaid advertising, printed materials, directory
listings, resumes
• interviews / comments to media
• statements in legal proceedings
• lectures / oral presentations
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Statements by Others
• Practitioners:
• who hire others to create/place public statements retain
responsibility for the statements
• make reasonable efforts to prevent others whom they do
not control from making deceptive statements
• make efforts to correct deceptive statements by others
• do not compensate employees of media in return for
publicity
• identify paid advertisements as advertising (or it is readily
apparent)
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Avoidance of False or
Deceptive Statements
• Practitioners:
• do not be false, deceptive, misleading, or fraudulent
• mislead by what they state, convey, suggest, or omit
• regarding research, practice, work, or affiliation
• Examples: training, degrees, credentials, services,
scientific basis, fees, research findings
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Media Presentations
• Practitioners presentations:
• based on appropriate literature and practice
• consistent with ethics code
• recipients not encouraged to infer a professional
relationship
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Testimonials
• do not solicit from current patients or others
vulnerable to undue influence
• In-Person Solicitation
• Do not do uninvited solicitation of business from actual or
potential clients (or vulnerable others)
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1180-1-16 Consumer Right- toKnow Act
• Practitioners must report to BOE if:
• malpractice judgment, award, or settlement of $10,000 or
greater
• any criminal felony conviction
• conviction or adjudication of any misdemeanor involving:
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sex, alcohol or drugs
physical injury/threat of injury to any person
abuse or neglect (minor, spouse, elderly)
fraud or theft
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1180-2-01 Scope of Practice
(Psychologist)
• HSP designation for healthcare services
• Limit services to competence areas (by training,
education, supervised experience)
• HSP services:
• psychological evaluation (abilities, personality,
neuropsychological)
• Diagnosis
• psychological treatment
• psychoeducational evaluation, diagnosis, treatment
• Non--HSP services
• psychological services to business
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1180-3-01 Scope of Practice
(Senior Psychological
Examiners )
• Limit services to competence areas (by training,
education, supervised experience)
• HSP services:
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psychological evaluation
Diagnosis
psychological treatment
psychoeducational evaluation, diagnosis, treatment
• Non--HSP services
• psychological services to business
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1180-3-01 Scope of Practice
(Psychological Examiners)
• Without Supervision:
• limit services to competence areas (by training,
education, supervised experience)
• psychological testing of abilities, interests, personality
• psychological services to business
• With Supervision:
• psychological evaluation
• Diagnosis
• psychological treatment
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1180-2-01 Standards for
Supervision
• Supervision must meet minimum identified standards
• Supervisor of record must be made known to the
BOE
• Supervisor must:
• be qualified by experience and training to perform the
supervised activity
• provide supervision on a regular and frequent basis
• have HSP if supervising health services
• limit number of supervisees
• provide supervision separate from administrative
supervision
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Standards for Supervision
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primarily on 1-to-1 basis
other supervision (group, seminar) may be extra
"considerable" 1-to-1 time for each client
records maintained by supervisor
• number of patient therapy hours supervised
• hours of supervision given (1-to-1)
• documentation of clients discussed
• no dual relationships (supervisor/supervisee)
• supervisor responsible to provide adequate time and
availability
• supervisee also responsible to obtain supervision
• supervision arrangements by mutual agreement
• supervisor may reduce intensity of supervision (based on
observed competence)
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Standards for supervision time
• Provisional Psychologist licensure (new license,
seeking one-year supervision for HSP)
• 1 hour per week
• "New" Psychological Examiner (less than 5 years
experience)
• 1 hour per week
• "Experienced" Psychological Examiner (greater than
5 years experience)
• "no less than monthly" (based on judgment of
supervisor).
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Violations of Scope of Practice
• Claiming expertise, using techniques without
education or supervised training
• Knowingly permitting unqualified individuals to
perform psychological services
• Failing to adequately supervise trainees or
employees
• Deliberately assisting others to violate or circumvent
Practice laws or rules
• Providing or claiming to provide health services
without HSP designation
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Ethics and the Law 2012
TENNESSEE CODE ANNOTATED
TN LAWS RELATED TO THE
PRACTICE OF PSYCHOLOGY
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63-1-149 Criminal Background
Checks
• Any provider under title 63 shall perform a "Registry
Check”
• "Do not hire" any offender for "direct patient care”
• State-by-state check in any state lived in for previous
7 years
• national sex offender Public Registry website
• adult abuse Registry
• Links to all websites on Department of Health website
• Not applicable to contracted, external staff (no direct
patient contact)
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63-1-109 Display of License or
Certificate of Registration
• Display original / copy of license, conspicuous
location
• Sign, 1 inch lettering, name, professional degree,
type of license
• Photo ID, name, type of license
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OR
• Written notification, name, type of license, at initial
office visit
• Website: name, type of license
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63-1-141 Default on Student
Loans
• Practitioners defaulting on student loans guaranteed
by:
• Tennessee Student Assistance Corporation
• United States Secretary of Education
• Default to result in suspension, denial, or revocation
of license
• Payment or entry into payment plan can result in
return of license
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37-1-605 Child Sexual Abuse
Reporting Law
• ANY person (including healthcare professionals) have
legal responsibility to report
• "Knows or has reasonable cause" to suspect abuse
• "Shall report"… Child Protective Services or police
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37-1-602 Definition: Child
Sexual Abuse
• Describes specific illegal behaviors
• On any child under age 13
• On any child 13-17, if committed by:
• parent, guardian, relative
• person residing in child's home
• other person responsible for care and custody
• CPS strongly indicates ANY sexual contact by an
adult with child under 18 is reportable
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37-1-403 Reporting of Brutality,
Abuse, Neglect, Or Child Sexual
Abuse
• ANY person (including healthcare professionals)
• Having knowledge of a child suffering / has suffered
injury or harm
• Child: under 18 years old
• "Injury" can be physical or emotional
• "Shall report"… Child Protective Services, police
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33-6-403 Involuntary Admission
to Treatment Facility
• Mental illness or serious emotional disturbance
• Immediate substantial likelihood of serious harm
because of mental illness
• Person needs care, training, or treatment
• All less restrictive alternatives for treatment are
unsuitable or unavailable
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33-6-501 Substantial Likelihood
of Serious Harm (defined)
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Threat or attempted suicide
Serious bodily harm inflicted on self
Has placed others in fear of violent behavior or harm
Person unable to avoid severe impairment or injury
from specific risks
• Substantial likelihood harm will occur if not
hospitalized
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33-3-206 Duty to Protect
• Duty to warn exists when patient communicates:
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actual threat of bodily harm
clearly identified victim
apparent ability to carry out the threat
likely to carry out the threat unless prevented
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33-3-207
• Identifies options available under "duty to protect”
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inform potential victim
voluntary commitment
initiate involuntary commitment
pursue other course of action prescribed by professional
ethics
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71-6-102 and 71-6-103 Elder
Abuse Reporting Law
• ANY person (including healthcare professionals)
• Having reasonable cause to suspect abuse of adult
• adult defined: 18 years old or more
• unable to manage own resources, ADLs, protect self due
to:
• age (60 or older)
• mental / physical impairment
• "Shall report"… Adult Protective Services, police
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33-6-504 Persons Who May
File for Commitment
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Parent, legal guardian, legal custodian
Spouse or responsible relative
Physician, mental health care provider, police officer
Medical facility currently providing care
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33-6-402 Detention without
Warrant
• For purpose of holding individual for evaluation for
commitment
• May take a person into custody without arrest warrant
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psychologist authorized to do commitment procedures
police officer
Physician
mandatory prescreening agents of mental health center
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33-6-404 Certificate of Need for
Emergency Tx and Transport
• If patient subject to emergency involuntary admission
• complete certificate of need (33-6-403)
• assess patient's clinical need for physical restraint or
transportation
• consult with mandatory prescreening agent
• For Tennessee state facility
• contact facility to verify available resources (bed)
• document contact in writing
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33-6-406 Transportation of
Detainee to Treatment Facility
• Completion of Certificate of Need under 33-6-404
• Provide Sheriff CON prior to transport
• For Tennessee state facility
• provide Sheriff CON
• provide Sheriff written documentation of hospital
contact/availability
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33-8-202 Treatment of Minors
(16-17 Years Old)
• Persons 16-17 have the same legal rights as adults
for Inpatient and Outpatient mental health treatment
• Except that:
• cannot authorize ECT
• cannot override voluntary inpatient admission by guardian
• 33-6-201
• Persons 16-17 can seek voluntary inpatient treatment
• Qualified mental health professional may assist the
application for treatment
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33-3-112 Minors Access to
Records
• Allows access to records for patients 16-17 years old
• Provider can deny access if release will result in
substantial risk of harm
• limit access only to those parts of record causing risk or
harm
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36-6-103 Release of Children's
Records
• By written request of parent
• Custodial parent, noncustodial parent, legal guardian
have access
• Practitioner can petition the court to restrain release,
to prevent harm to child
• Applies only to children under age 16
• HIPAA supersedes for16-17-year-olds
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24-9-101 Deponent Exempt
from Subpoena to Trial
• Psychologist, physician, custodian of medical
records, and others
• Exempt from subpoena to trial
• Subject to subpoena to deposition
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33-6-1001 Declaration for
Mental Health Treatment
• Identification of patient instructions and preferences
• Used when patient is expected to be incapable of
making mental health decisions at later date
• Can include instructions re care, refuse /permit
treatment
• Requires provider to act in accord with declaration
• Provider may withdraw from providing treatment
• identifies specific procedure for withdrawal
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Ethics and the Law 2012
FEDERAL LAWS RELATED TO
THE PRACTICE OF PSYCHOLOGY
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Red Flags Law
• Protection against identity theft
• Not applicable to practice of psychology!
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HITECH
• Breach of Privacy law
• "Breach" requires report to:
• Patient
• Health and Human Services
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"Breach" Defined
• Acquisition, access, use, disclosure of PHI
• Any violation of HIPAA privacy rule IF:
• PHI not secured by encryption
• "significant" risk of harm
• Requires assessment of risk level
• "significant risk": report to patient / HHS
• "nonsignificant risk": document, HIPAA, 6 years
• tell patient if asked
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Notification of Patient
• Without unreasonable delay; within 60 days of
discovery
• "Discovery": knew or should have known of breach
• Language the patient can understand
• Description of PHI involved
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Notification of Patient
(continued)
• Recommended steps for patient self-protection
• Steps taken to investigate breach, mitigate harm,
prevent repetition
• Provider contact information
• Contact procedures
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Notification of HHS
• 500 or more patients: notify HHS immediately
• Less than 500 patients: notify HHS at end of calendar
year
• Report site: www.hhs.gov
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Miscellaneous Complications
• Involves minors, incapacitated, deceased patients
• contact "personal representative”
• No available contact information for patient
• 10 or fewer patients: telephone
• 11 or more patients: "conspicuous notice”
• office website
• local media
• toll-free telephone number for 90 days
• "Imminent harm": immediate telephone contact in
emergency
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Ethics and the Law 2012
CPT & ICD
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New CPT Codes
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Starting January 1, 2013
All insurance carriers, including Medicare
Services underlying new codes will not change
All health professionals will use same psychotherapy
codes
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New CPT Codes
• Primary difference:
• 30 min., not 20-30 min.
• 45 min., not 45-50 min.
• 60 min., not 75-80 min
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ICD 10-CM
• World Health Organization International Classification
of Diseases
• Scheduled start: October 2013
• Mandatory: HIPAA (and HIPAA penalties)
• No "grace period" once implemented
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ICD 10-CM
• ICD-9 / DSM-IV overlap
• ICD 10-CM structure is different
• broad categories of disorders similar
• category arrangement is different
• alphanumeric codes are very different
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ICD 10-CM
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Training is coming
Similar to HIPAA training process
Transition manuals available at CMS website
http://www.cms.gov/ICD10/Downloads/ICD10Smallan
dMediumPractices508.pdf
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Ethics and the Law 2012
TECHNOLOGY & TELEMEDICINE
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Around the World in …
• 4 years, 3 months, 15 days – walking - Dave Kunst
1970
• 3 years, 10 months, 29 days – sailing – Magellan
1519
• 19 days, 21.9 hours – ballooning – Jones/Piccard
1999
• 9 days, 3 minutes – non-stop flight - Yeager/Rutan
1986
• 96.2 minutes – earth orbit – Sputnik 1957
• 0.1336 seconds - Light traveling around the earth
• 18.1 seconds – an electron traveling around the earth
at the speed at which it circles a hydrogen atom
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So What’s the Big Deal for
Psychology?
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Telehealth & Health Reform
• Whatever happens, healthcare reform is here to stay
• Shift from deficit/disease to strength/health
• Innovative approaches
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Accountable Care Organizations
Affordable Care Homes
Private & public insurance exchanges
Telemedicine
• Telemedicine is here to stay
• Electronic communication is already a part of daily
practice
• Telemedicine is big business
• 5/10/12, Maryland became the 13th state to mandate
telehealth services
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Generations
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APAIT 2/14/2012
• Adventures on the Electronic Frontier: Ethics & Risk
Management in the Digital Era, Jeffrey Younggren,
Ph.D., ABPP, Knoxville, TN
• The pitch:
• Economic realities
• Exciting opportunities
• The choice:
• Lead, follow, or get out of the way
• The risk:
• Boards are conservative by nature
• New regulation will be slow to develop
• New legal precedent will be even slower
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A Question of Jurisdiction
• Does the electronic transaction take place
• Where the consumer resides?
• Where the provider resides?
• In cyberspace?
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What’s the Mission?
• Protect the consumer?
• Regulate psychology and other health providers?
• Provide access?
• Federal law & rules moving toward increased
emphasis on “choice” & increasing access
• BOE (including TN) focus on consumer protection &
professional regulation
• Which is “right?”
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The Trend
• Precedent leaning toward the provider’s intent as the
key to jurisdiction
• Wright v Yackley (1972), 459 F. 2nd (US Court of Appeals,
9th Circuit, 1971): the state of patient residence can
assert jurisdiction only when the provider has made a
deliberate attempt to promote services in the forum state,
or has used the forum state’s laws to advantage
• Prince v Urban (1996), 49 Cal App 4th (57 Cal Rptr 2d,
181): the consumer sought out the provider, who was in
Illinois. The provider’s residence was incidental; in this
case the state’s interest should be in assuring access,
not protection
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The Trend
• Other cases where the forum state has been ruled to
have jurisdiction
• C. Jones v B Williams (2009), 660 F Supp. 2d 1145;
2009
• Bullion v Gilliespie (5th Cir. 1990) 895 F 2d 213
• Hageseth v The Superior Court of San Mateo (2007).
150 Cal App. 4th 1399.
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Tentative Conclusions
• APAIT:
• Unless the psychologist is actively promoting services in
an interstate manner, forum state boards will be unable
to gain jurisdiction
• Level of marketing unclear; websites probably not
promotional
• Extradition is unlikely
• “Coaching” clearly defined is probably safer
• Psychologists who provide services across state lines
ARE subject to review by their own state BOE
• BUT
• BOE’s tend to see themselves as consumer protectors,
and may act if another state board registers a complaint
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Ethics and the Law 2012
TECHNOLOGY INTERFACE
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A Provider Checklist
• How much do I know about the technolgy?
• Benefits?
• Risks?
• Better or safer alternatives?
• How competent am I?
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Used it before?
Trained to use it?
Checked the literature?
Consulted with others?
• Risks to the psychologist?
• Adapted from Jounggren, 2012 - APAIT
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A Consumer Checklist
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Is the consumer competent in the technology?
Is adequate informed consent possible?
Can technical problems be anticipated/managed?
How to manage emergencies?
Risks to privacy?
• Adapted from Jounggren, 2012 - APAIT
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Ethics and the Law 2012
TECHNOLOGY INTERFACE –
RECORD SECURITY
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Record Keeping Issues Resources
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HIPAA Security Act & Federal Regulations
APA Record Keeping Guidelines
State Regulations
Institutional Policy
Professional Standards
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Security Rule Basics
• Trigger: electronic transmission in covered
transaction
• Applies only to electronically transmitted & stored PHI
• Designed to ensure PHI is protected
• Provides steps for psychologists
• Additional issues for group practices
• More complicated when practice has employees
• 3 types of security standards
• Administrative standards – office policies, training
• Physical standards – limiting access to storage
• Technology standards – privacy/security standards
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Implementing Security
• Conduct and document a risk analysis – retain with
other HIPAA compliance records
• Identify and document vulnerabilities
• Modify procedures to minimize vulnerabilities and
attain compliance
• Document how you have complied
• Periodically review
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APAIT Recommendations
• Appoint someone who is responsible (usually the
provider)
• Develop specific policies for data access to all
devices
• Include computers, PDAs, cell phones, backups, any
other wireless devices
• Require unique passwords
• Procedures related to acquiring, modifying, and
terminating passwords
• Limit access to “need to know”
10
0
APAIT Recommendations
• Updated virus, firewall
• Automatic backup, stored in a secure location,
disaster proof
• Automatic encryption and decryption advisable
• Disk wiping capability
• Lock out system after 3 bad password attempts
• Store PHI in a form that is unalterable/uneditable
10
1
APAIT Recommendations
• Screen employees & contractors with access to PHI
• Train all employees in the Security Rule
• Documented
• Specific sanctions in place for security breaches
• Specific policies for security breaches
• Written plan for emergency/disaster recovery
• Access control
•
•
•
•
No public access to storage
Specific rules about removing PHI from premises
Workstation controls (locking, screen protectors)
Policies for decommissioning computers & devices
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2
Enforcement & Penalties
•
•
•
•
Complaint driven
Initial enforcement will be educational
Fines & civil penalties will be used
Risk of civil lawsuit if data is lost, stolen, or otherwise
compromised
• Licensing board complaints will probably not be a
major problem for those making a good faith effort to
comply
• That said …
10
3
Ethics and the Law 2012
TECHNOLOGY INTERFACE –
RECORD KEEPING
10
4
2007 APA Record Keeping
Guidelines
• Electronic records, like paper records, should be
created & maintained to
• Protect security, integrity, and confidentiality
• Permit appropriate access
• Comply with applicable legal and ethical standards
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5
The Clinical Record
• Must include
•
•
•
•
•
Medication prescription & monitoring
Counseling session start & stop times
Modality & frequency of treatment
Results of clinical tests (including raw data)
Summaries of:
•
•
•
•
•
•
Diagnosis
Functional status
Treatment plan
Symptoms
Prognosis
Progress to date
10
6
The Digital Record
•
•
•
•
•
Written notes (psychotherapy & clinical record)
Email communications
Text messages
Audio files
Video files
10
7
Encryption
• Protects provider and clients
• If you do not encrypt and you lose PHI, you must
inform your clients and HHS. If this involves more
than 500 clients, the media must be notified
10
8
To Encrypt or Not to Encrypt
•
•
•
•
Remember scalable compliance – reasonable?
Do you have your own policy?
Is your policy documented?
Is your electronic data secure?
10
9
What is Encryption?
• Conversion of data into a form that is not easily
understood by an unauthorized person
• Requires a key to read the data
• Sources:
• TrueCrypt: www.truecrypt.org
• BestCrypt Enterprise: www.jetico.com/data-protectionencryption-bestcrypt-enterprise
• PGP Whole Disk Encryption:
www.symantec.com/index.jsp
11
0
Backup
• Media
• External hard drive
• Flash drive
• Backup devices (tape, disk, flash)
• Off site storage
•
•
•
•
www.carbonite.com
www.mozy.com
www.backblaze.com
www.ironmountain.com
11
1
The Business Associate
Contract
• Changed by the American Recovery and
Reinvestment Act of 2009
•
•
•
•
•
•
Vendors must comply with contracts
Vendors must have HIPAA compliant safeguards in place
Vendors must report all breaches to provider
Vendors must account for all disclosures
Vendors must destroy PHI when contract ends
Vendors can be disciplined for breaches
11
2
Ethics and the Law 2012
TO BOLDLY GO WHERE NO ONE
HAS GONE BEFORE
11
3
Three Stages of Learning
1. Don’t …
2. If you do, be careful …
3. When you do, here’s how …
• We are at stage 2, as there is insufficient clarity to
give you the “how to.” The best we can offer is:
•
•
•
•
Increased awareness of potential pitfalls and obstacles
Ideas to consider
Guidance where it exists
Trends to watch
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“Stage 2” Guidance
• Remember that the area is evolving
• Technology is evolving faster than ethics & the law
• Changes in health care will drive further innovation
• Competing agendas (e.g., consumer protection vs.
consumer autonomy) will drive much of the conversation
• Good risk management is essential in areas where
there is lack of clarity
• APAIT: it is in the best interests of psychology to be
an active part of the evolution of telehealth
11
5
Water, Water Everywhere …
•
•
•
•
•
•
Voicemail
Email
Text messaging
Websites
Blogs
Social Networking
• Facebook
• Twitter
• LinkedIn
• The beat goes on …
11
6
E-Communication Types
Direct Care &
Adjunctive Services
• Direct
•
•
•
•
•
Teletherapy & e-therapy
Coaching & consulting
Assessment
I/O Consultations
Forensic work
Administration
• Billing (insurance &
otherwise)
• Scheduling
• Record keeping
• Other documentation
• Adjunctive
•
•
•
•
•
Collegial consultation
Supervision
Psychoeducation
Recording of sessions
Homework assignments
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7
Areas of Concern
•
•
•
•
•
•
•
Informed consent
Licensure
Billing
Confidentiality
Application
Technical issues
Training & Competency
11
8
Video Conferencing
• Skype – is it secure?
• Apple Facetime – is it secure?
• Technical challenges
•
•
•
•
•
•
Do you know how to provide security?
Resolution/picture & voice quality
Reliability
Costs
Differences from in-person
Privacy
11
9
Websites
• Benefits
• Access to information
• Efficient, cost effective exposure
• Posting of information for download
• Risk management challenges
•
•
•
•
Purpose – what do you hope to accomplish?
Boundaries
Blogging is forever
Marketing appropriateness
• TN Law requires identification as “Psychologist”
12
0
Social Networking
• Professional vs Private Conduct
• Are the boundaries blurred?
• Challenges:
• Boundaries
• Privilege & confidentiality
• Security issues (Facebook Fans, Friends, and Friends of
Friends)
12
1
Managing Virtual Relationships
• Do you have an explicit policy about friending,
following, tweeting, blog comments? Why or why
not?
• Risk management advice (APAIT)
• Informed consent – be explicit
• Exchange information only in a secure fashion
(telephone, encrypted electronic communication)
• Consider online relationships as similar to in-person ones
with clients and former clients
• Do not access clients’ personal information with
permission
12
2
Ethics and the Law 2012
PROFESSIONAL BOUNDARIES IN
THE ERA OF THE INTERNET
12
3
Boundaries
• Professional boundaries in the era of the internet
• Glenn O. Gabbard, Kristin A. Kassaw, Gonzalo PerezGarcia
• Academic Psychiatry, 35:3, May-June, 2011
• Scope
• 64.3% of medical students & 12.8% of residents were on
Facebook
• 60% reported incidents of students posting
unprofessional content online
• 13% reported violating patient confidentiality
• 80% of Facebook users do not actively manage privacy
settings
• Multiple examples of blogs representing patients or the
profession in a negative light
12
4
Guidelines
• Psychiatrists and other mental health professionals
who use social networking sites should activate all
privacy settings
• Web searches should be conducted periodically to
monitor false information or photographs of concern.
• Do not include the following items in blogs or
networking sites:
• Patient information or other confidential information
• Disparaging comments about colleagues or patients
• Any comments on lawsuits, clinical cases, or
administrative proceedings (compromise defense)
• Photographs that might be considered unprofessional
12
5
Guidelines (cont)
• If you look up public information about patients, be
prepared to manage the consequences
• Avoid being “Facebook friends” or other dual
relationships (consider separate profiles for separate
roles – but …)
• Assume that nothing is anonymous
• Train students and supervisees in appropriate
behavior online
• Develop policies and guidelines – written – including
potential handling of breaches
• Include case study examples in training
12
6
Questions to Consider
• Is anything private?
• Do we care?
• Is it possible to avoid dual relationships in a virtual
world?
• Do we care?
• How will you handle the coming electronic world?
• Do we care?
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