Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 1
The Duty to Record: Ethical, Legal, and Professional Considerations for
Missouri Psychologists
Introduction
The American Psychological Association Practice Directorate has provided an
excellent online presentation about electronic healthcare records (EHRs) and the basic
terminology related to EHRs; the presentation dispels common myths about EHR
systems and provides detail about their meaningful use in integrated health care
settings.
1
The Division 31 and 42 EHR working group’s
2
primary goal was to create a
series of State specific templates that would work well for psychologists as they
transition into the use of EHRs, particularly in integrated health care settings where
shared information is clinically essential and specific laws or regulations may dictate at
least some of what is included in those records. To achieve this goal, we conducted a
review of the laws related to record keeping, and the relevant and recent literature
(particularly the last decade) regarding EHRs, including variations across states.
Further, we consulted with key psychologists that have been using EHRs on a day to
day basis, who have developed experience establishing polices and processes within
their own institutions and practices. They have effectively used this developing
technology to improve clinical care while protecting patient rights. They have found
that the EHR enables collaborating professionals within the integrated health care
settings to understand the behavioral risk factors that exist in each case and to be kept
informed about the health behavior changes that occur with psychological service
interventions (HRSA, 2012).
3
In order to digest the laws accurately, we examined the annotated codes and
regulations available on Westlaw and Lexis for the 50 states and the District of
1
Electronic Health Records: A Primer (retrieved Nov. 29, 2012 at
http://www.apapracticecentral.org/update/2012/11-29/electronic-records.aspx.
2
Christina Luini, JD, M.L.I.S.; Dinelia Rosa, PhD; Mary Karapetian Alvord, PhD; Vanessa K.
Jensen, PsyD; Jeffrey N. Younggren, PhD; G. Andrew H. Benjamin, JD, PhD, ABPP. The working
group, came together to discharge the obligations of the CODAPAR grant that we wrote and
received: http://www.apadivisions.org/division-31/news-events/grant-funding.aspx.
3
Preparing the Interprofessional Workforce to Address Health Behavior Change. (retrieved Nov.
11, 2012 at
http://www.hrsa.gov/advisorycommittees/bhpradvisory/acicbl/Reports/acicbl_tenth_report_final.
pdf).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 2
Columbia with reference to several relevant state-by-state surveys retrieved from Lexis
and Westlaw.
4
Our research answered the following questions for each jurisdiction: (a)
Do record keeping duties created by statutes or administrative rules exist? (b) Have
court rulings created a common-law duty or interpreted the statutes or administrative
rules? (c) What are the contents of the record that are mandated by law? (d) Are there
laws related to the maintenance and security of records? (e) What are the laws related
to retention of records? (f) What are the consequences of violating specific duties?
Readers should view the narrative summary of their jurisdiction’s law as a
starting point for interpreting how to meet the law within their own jurisdiction as
they construct their electronic records. As laws can change, please check the law with
your state associations to see if more current interpretations for meeting the record
keeping duties. Many state professional associations have ethics committees that can
be consulted as part of their benefits. In addition, your association can refer
psychologists for individual consultation to lawyers specializing in legal practices
focused on mental health practice. The professional liability carriers also provide free
legal and professional consultation.
Missouri specific templates for the types and contents of the record are
provided based upon a review of your jurisdiction’s law. The digest of your
jurisdiction’s law should be read if you intend to use the templates.
State Specific Template for contents of a record
Missouri law calls for an intake and evaluation note, and progress notes. The
contents of the two templates for these documents comply with the law digested
below. We also believe that a termination note will likely reduce exposure to
arguments about continued duty of care, and reduce the risk of responsibility in a duty
to protect/warn jurisdiction.
5
Because the documents permit hovering over the underline fields with a cursor
4
50 State Surveys, Legislation & Regulations, Psychologists & Mental Health Facilities (Lexis March
2012); Lexis Nexis 50 State Comparative Legislation / Regulations, Medical Records (Lexis June
2011); 50 State Statutory Surveys: Healthcare Records and Recordkeeping, Records Retention
(Thomson Reuters/ West October 2011); 50 State Statutory Surveys: Healthcare, Healthcare
Facilities: Maintaining Privacy of Health Information (Thomson Reuters / West October 2011).
5
Benjamin, G. A. H., Kent, L., & Sirikantraporn, S. (2009). Duty to protect statutes. In J. L. Werth,
E.R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect: Ethical, legal, and professional responsibilities of
mental health professionals (pp. 9 – 28). Washington, DC: APA Press. doi:10.1037/11866-002.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 3
to select an option or permit filling in the shaded text boxes, they cannot be inserted
into this document.
6
Please access each of the documents on this website, separately.
Our group also suggests that users of the templates consider how “behavior
may be shaped by culture, the groups to which one belongs, and cultural
stereotypes."
7
Whenever “Eurocentric therapeutic and interventions models”
8
may
impair the consideration of multicultural factors among the integrated health care
team members, we urge that psychologists note the factors within the appropriate
template fields. In light of the World Health Organization’s demonstrated
commitment to the formulation of a diagnostic system that moves beyond biological
causation and integrates the contributions of psychological, cultural, and social
factors, and APA’s participation in the development of the International Classification of
Functioning, Disability and Health (World Health Organization, 2010), our group
recommends using ICD-10 whenever diagnoses are being made.
9
The EHR templates
permit drop down diagnoses using the ICD-10 functional diagnoses.
Statute or Rule
Missouri’s State Committee on Psychologists has adopted its own ethical rules
of conduct and view the APA Ethical Principles of Psychology and Code of conduct
for psychologists and the ASPPB Code of Conduct as “… an aid in resolving
ambiguities which may arise in the interpretation of the ethical rules of conduct.
10
6
Please use the most recent version of WORD to access the full capabilities of the EHR templates.
7
American Psychological Association. (2002). Guidelines on Multicultural Education, Training, Research,
Practice, and Organizational Change for Psychologists (pp.17-24; p. 11). Washington, DC: Authors
(http://www.apa.org/pi/oema/resources/policy/multicultural-guideline.pdf (last accessed August
1, 2012).
8
Id. at p. 45.
9
See ICD-10 at http://apps.who.int/classifications/icd10/browse/2010/en (last accessed August 1,
2012); The APA Policy and Planning Board recognized how psychology could move forward by
turning to a diagnostic system that was based on the concept of functional impairments (APA Policy
and Planning Board, (2005). APA 2020: A perfect vision for psychology: 2004 five-year report of the
policy and planning board. American Psychologist, 60, 512-522, 518. (See,
http://www.apa.org/about/governance/bdcmte/five-year-report.pdf ; and APA has helped fund
the creation of the 10
th
edition in 2008. See, http://www.apa.org/about/governance/council/08aug-
crminutes.aspx (last accessed August 1, 2012)).
10
See MO. CODE REGS. tit. 20, § 2235-5.030(1) refers to: The Ethical Principles of Psychologists and
Code of Conduct (American Psychological Association 2002, amended 2010), copies available from
American Psychological Association Order Department, 750 First Street, NE, Washington, D.C.
20002-4242 at APA’s website: http://www.apa.org/ethics/code/principles.pdf (last accessed Aug. 1,
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 4
Common Law
Missouri does impose a common law Tarasoff duty. In Bradley v. Ray, the state
Court of Appeals held that “when a psychologist or other health care professional
knows or pursuant to the standards of his profession should have known that a client
presents a serious danger of future violence to a readily identifiable victim the
psychologist has a duty under Missouri common law to warn the intended victim or
communicate the existence of such danger to those likely to warn the victim including
notifying appropriate enforcement authorities.”
11
In 2002, Virgin v. Hopewell Center
clarified that Bradley does not impose a common law duty to warn the general public
of dangerous clients as only “foreseeability as to a readily identifiable person will
sustain a duty.”
12
In Virgin, the plaintiff was injured when a client who had told her
psychiatrist she had a “death wish” was speeding on the wrong side of an interstate
highway.
13
Relevant citing references to 20 M
O. CODE REGS. ANN. tit. 20, § 2235-5.030 (re: Ethical
Rules of Conduct for Psychologists)
By leaving documents containing confidential client information on
Hammond's property as described in our Findings of Fact, Raum is subject to
discipline under § 337.035.2(6) and (15) in that he failed to store, dispose of,
and properly safeguard confidential client information in violation of the
Ethical Rules of Conduct as set forth in 20 CSR § 2235-5.030(4)(B)1 and (9)(B).
Raum is subject to discipline under § 337.035.2(6) and (15).
14
Relevant citing references to M
O. REV. STAT. § 337.055. (re: Privileged communications)
Statutory privileges for communications between a client and professional
counselor or psychologist exist without the physician-patient privilege
2012); the Association of State and Provincial Psychology Boards (ASPPB) Code of Conduct, at
ASPPB’s website: http://www.asppb.net/i4a/pages/index.cfm?pageid=3353 (last accessed Aug. 1,
2012); see also MO. REV. STAT. § 337.050 (“The committee may promulgate, by rule, “Ethical Rules
of Conduct” governing the practices of psychology which rules shall be based upon the ethical
principles promulgated and published by the American Psychological Association.”).
11
Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995).
12
Virgin v. Hopewell Ctr., 66 S.W.3d 21, 24 (Mo. Ct. App.
13
Id. at 22.
14
State Committee of Psychologists v. Raum, Mo. Admin. 07-0479 PS (Mo.Admin.Hrg.Comm.), 2008 WL
2447433, 5. (Administrative decision.)
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 5
stipulation that the communications must pertain to treatment in order to be
classified as privileged.
15
The hearing board for the state highway patrol properly excluded psychological
records of complainant in proceeding which resulted in dismissal of patrolman
based on allegation that patrolman made improper sexual advances while on
duty; communications to licensed psychologist are privileged and protected
from release without consent of person who received the professional services.
16
Father did not waive privilege attached to testimony of licensed psychologist by
this section in dissolution proceeding by raising question as to mother's mental
condition in determining custody.
17
Appellant cites Fierstein v. DePaul Health Ctr., 949 S.W.2d 90 (Mo.App.1997) as
support for her argument. We find it is of little assistance to Appellant. In
Fierstein, the plaintiff sued a hospital after the hospital prematurely released her
medical records to her ex-husband's attorney after receiving a subpoena to
provide the records at a deposition. The trial court granted the hospital's motion
for summary judgment and the plaintiff appealed. Id. at 91. The Court of
Appeals reversed the trial court's ruling, noting that there is a “fiduciary duty of
confidentiality not to disclose any medical information received in connection
with the treatment of the patient …If a physician discloses any information,
without first obtaining the patient's waiver, then the patient may maintain an
action for damages in tort against the physician.” Id. at 92. Fierstein simply
recognizes that a tort action may lie against a physician for violation of his
fiduciary duty of confidentiality.
18
Contents of the record are mandated by law
Missouri law calls for the psychologist rendering professional individual
services to a client (or a dependent), or services billed to a third party payer,
must maintain professional records that include:
19
1. Name of the client and other identifying information such as address,
15
State v. Hawkins, 328 S.W.3d 799 (Mo. 2010).
16
Gamble v. Hoffman, 732 S.W.2d 890 (Mo. 1987).
17
Griggs v. Griggs, 707 S.W.2d 488 (Mo. 1986).
18
Gulley v. Werth, 61 S.W.3d 293, 298 (Mo.App. S.D., 2001).
19
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(4).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 6
telephone number, age, and/or sex;
2. The presenting problem(s) or purpose or diagnosis;
3. Any assessment including test results or other evaluative results obtained and
any basic test data from which they were derived;
4. The date and description of each contact or service provided or pertaining to
the client;
5. The nature, type and goals of any psychological interventions;
6. The fee arrangement and documentation of discussion with client prior to
initiation of services;
7. A copy of all test or other evaluative reports prepared as part of the
professional relationship;
8. Notation and results of formal consults with other providers;
9. Notation of referrals given or recommended to the client;
10. Any releases executed by the client;
11. Records shall contain data relating to financial transactions between the
psychologist and client, including fees assessed and collected;
12. Written informed consent must be obtained concerning all aspects of
services including assessment and therapy;
13. A provisionally licensed psychologist must include on the informed consent
the fact that the provisional licensee is working under the supervision of a
licensed psychologist. The informed consent form must identify the
supervising psychologist; and
14. Entries in the records must be made within ten (10) days following each
consultation or rendition of service. Entries that are made after the date of
service must indicate the date entries are made, as well as the date of service.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 7
Missouri regulations also delineate informed written consent must be
obtained:
20
The psychologist shall give a truthful, understandable and reasonably complete
account of the client’s condition to the client or the parent of minor children or
legal guardian. The psychologist shall keep the client fully informed as to the
purpose and nature of any evaluation, treatment or other procedures, and of
the client’s right to freedom of choice regarding services provided …When a
psychologist agrees to provide services to a person or entity at the request of a
third party, the psychologist shall explain and document the nature of the
relationships with all individuals or organizations involved. This includes the
role of the psychologist, who is the client, the probable uses of the services
provided or the information obtained, and any known or probable limits to
confidentiality.
Informed consent under Missouri regulation requires clarifying expectations:
21
The psychologist shall document that the client has been informed as to the
purpose and nature of an evaluation, …treatment …procedure as well as
reasonable alternatives in language commensurate with the individual’s level of
comprehension. …minors and those with diminished capacity. Whenever
possible, the psychologist shall obtain informed consent from children and
from individuals with diminished mental capacity regarding their participation
in psychological services or research. If they object to participation, the
psychologist shall consider the individual’s basic rights in light of those factors
such as age, psychological maturity and the judgment of the individual’s parents
or legal guardians. The psychologist’s decision shall be based upon the best
interests of the individual ...voluntary and mandatory procedures. The
psychologist shall inform recipients as to the voluntary or mandatory nature of
the assessment, treatment …procedure. When a procedure is voluntary, the
psychologist shall inform the clients …of their freedom of choice and any
alternatives to participation. …electronic recording and filming. The
psychologist shall obtain permission from clients …prior to the use of
observation or electronic taping, recording or filming procedures ...access to
confidential information of others. When the possibility exists that others may
20
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(7).
21
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(8)(B).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 8
obtain access to confidential information, the psychologist shall explain this
possibility, together with plans for protecting confidentiality, to clients …as
part of the procedure for obtaining informed consent.
The APA Code of Conduct also would be applied with the Health Insurance
Portability and Accountability Act (HIPPA)
22
to psychological records in Missouri:
3.10 Informed Consent
23
(a) When psychologists …provide assessment, therapy, counseling or
consulting services in person or via electronic transmission or other forms of
communication, they obtain the informed consent of the individual or
individuals using language that is reasonably understandable to that person or
persons… (See also Standards 9.03, Informed Consent in Assessments;
and 10.01, Informed Consent to Therapy.)
(b) For persons who are legally incapable of giving informed consent,
psychologists nevertheless (1) provide an appropriate explanation, (2) seek the
individual's assent, (3) consider such persons' preferences and best interests,
and (4) obtain appropriate permission from a legally authorized person, if such
substitute consent is permitted or required by law. When consent by a legally
authorized person is not permitted or required by law, psychologists take
reasonable steps to protect the individual's rights and welfare.
(c) When psychological services are court ordered or otherwise mandated,
psychologists inform the individual of the nature of the anticipated services,
including whether the services are court ordered or mandated and any limits of
confidentiality, before proceeding.
(d) Psychologists appropriately document written or oral consent, permission,
and assent. (See also Standards 9.03, Informed Consent in Assessments;
and 10.01, Informed Consent to Therapy.)
22
HIPPA, U.S. Government Printing Office Electronic Code Of Federal Regulations website at:
Subpart C--SECURITY STANDARDS FOR THE PROTECTION OF ELECTRONIC
PROTECTED HEALTH INFORMATION ; Subpart E--PRIVACY OF INDIVIDUALLY
IDENTIFIABLE HEALTH INFORMATION (last accessed Aug. 1, 2012).
23
APA CODE OF CONDUCT, supra note 10.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 9
A HIPPA notice of privacy practices
24
that delineates the psychologist’s scope of and
limitations of confidentiality works in tandem with the disclosure document provided
to the patient during the informed consent process specified by Standards 3.10, 9.03,
and 10.01. Missouri law would require disclosures when privilege would not apply,
under the provisions of sections 337.600 to 337.689, to prevent the disclosure of any
information acquired from persons consulting them in their professional capacity, or
that would compel to disclose such information except:
25
(1) With the written consent of the client, or in the case of the client's death or
disability, the client's personal representative or other person authorized to sue,
or the beneficiary of an insurance policy on the client's life, health or physical
condition;
(2) When such information pertains to a criminal act;
(3) When the person is a child under the age of eighteen years and the
information acquired by the licensee indicated that the child was the victim of a
crime;
(4) When the person waives the privilege by bringing charges against the
licensee;
(5) When the licensee is called upon to testify in any court or administrative
24
45 CFR 164.502 (a)(1)(ii) & 45 CFR 164.506 (c); HIPPA, U.S. Government Printing Office
Electronic Code Of Federal Regulations website at: Subpart E--PRIVACY OF INDIVIDUALLY
IDENTIFIABLE HEALTH INFORMATION (last accessed Aug. 1, 2012).
25
MO. REV. STAT. § 337.636; See, MO. REV. STAT. § 337.035: Persons licensed under the provisions
of sections 337.700 to 337.739 may not disclose any information acquired from persons consulting
them in their professional capacity, or be compelled to disclose such information except: (1) With
the written consent of the client, or in the case of the client's death or disability, the client's personal
representative or other person authorized to sue or the beneficiary of any insurance policy on the
client's life, health or physical condition; (2) When such information pertains to a criminal act; (3)
When the person is a child under the age of eighteen years and the information acquired by the
licensee indicated that the child was the victim of a crime; (4) When the person waives the privilege
by bringing charges against the licensee; (5) When the licensee is called upon to testify in any court
or administrative hearings concerning matters of adoption, adult abuse, child abuse, child neglect or
other matters pertaining to the welfare of clients of the licensee; or(6) When the licensee is
collaborating or consulting with professional colleagues or an administrative superior on behalf of
the client.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 10
hearings concerning matters of adoption, adult abuse, child abuse, child
neglect, or other matters pertaining to the welfare of clients of the licensee; or
(6) When the licensee is collaborating or consulting with professional
colleagues or an administrative superior on behalf of the client.
In addition, the Missouri law would require disclosures during the informed consent
process about the following legal limits of protecting patient confidentiality:
26
The psychologist shall safeguard the confidential information obtained
in the course of practice …or other professional duties. Psychologists
who offer services, products or information via electronic transmission shall
inform clients/patients of the risks to privacy and limits of confidentiality.
…The psychologist shall disclose confidential information to others only with
the informed written consent of the client with the exceptions as set forth here.
1. Disclosure without informed written consent. The psychologist may disclose
confidential information without the informed written consent of the client
when the psychologist judges that disclosure is necessary to protect against a
clear and substantial risk of imminent serious harm being inflicted by the client
on the client or on another person. In that case, the psychologist shall disclose
the confidential information only to appropriate professional workers, public
authorities, the potential victim, the family, or both, of the client. When the
client is an organization, disclosure shall be made only after the psychologist
has made a reasonable and unsuccessful attempt to have the problems
corrected within the organization.
2. Use of interpreters. Psychologists using the services of an interpreter shall
obtain informed consent from the client/patient to use that interpreter, shall
ensure that confidentiality of test results and test security are maintained, and
include in recommendation reports and diagnostic or evaluative statements,
including forensic testimony, discussion or any limitations on the data obtained.
3. Legally dependent clients. At the beginning of a professional relationship, to
the extent that the client can understand, the psychologist shall inform a client
26
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(9).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 11
who is below the age of majority or who has a legal guardian of the limit the
law imposes on the right of confidentiality with respect to his/her
communications with the psychologist.
4. Multiple clients. When service is rendered to more than one (1) client during
a joint session, for example to a family or a couple or a parent and child or a
group, the psychologist shall, at the beginning of the professional relationship,
clarify to all parties the manner in which confidentiality will be handled. All
parties shall be given opportunity to discuss and to accept whatever limitations
of confidentiality will be adhered in the situation.
5. Release of confidential information. The psychologist may release
confidential information upon court order, as defined in section (2) of this rule,
or to conform with state or federal law or regulation (e.g., “The psychologist
who has knowledge or believes in good faith that there has been a
violation of the statutes or rules of the committee shall inform the committee
in writing. When the information regarding that violation is obtained in a
professional relationship with a client, the psychologist shall report it
only with the written permission of the client. Nothing in this rule shall relieve
a psychologist of the duty to file any report required by applicable statutes.
Failure to report a violation of the statutes and/or rules, is in itself, an ethics
violation.”
27
6. Abuse reports of abuse of children and vulnerable adults. The psychologist
shall be familiar with any relevant law concerning the reporting of abuse of
children and vulnerable adults, and shall comply with the law.
7. Discussion of client information among professionals. When rendering
psychological services as part of a team or when interacting with other
appropriate professionals concerning the welfare of the client, the psychologist
may share confidential information about the client provided the psychologist
takes reasonable steps to assure that all persons receiving the information are
informed about the confidential nature of the information and abide by the
rules of confidentiality.
HIPPA also permits sharing protected health information (PHI) with other health
27
See, 20 MO. CODE REGS. ANN. tit. 20, §2235-5.030(15)).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 12
care professionals who are engaged in the evaluation and treatment of the same
patient.
28
In addition, Missouri regulation states that for each person professionally
supervised, the psychologist shall maintain a record of the supervisory session that
shall include the type, place, and general content of the session, as well as other
information required by these rules, other law or good practice.
29
APA Standard 4.04(a) suggests that psychologists focus the documentation in a
manner that is very protective of their client’s privacy rights.
4.04 Minimizing Intrusions on Privacy
30
(a) Psychologists include in written and oral reports and consultations, only
information germane to the purpose for which the communication is made.
The following standards set forth in the APA Code of Ethics create specific
record keeping obligations for Missouri psychologists:
6.06 Accuracy in Reports to Payors and Funding Sources
31
In their reports to payors for services …psychologists take reasonable steps to
ensure the accurate reporting of the nature of the service provided …the fees,
charges, or payments, and where applicable, the identity of the provider, the
findings, and the diagnosis. (See also Standards 4.01, Maintaining
Confidentiality; 4.04, Minimizing Intrusions on Privacy; and 4.05, Disclosures.)
9.01 Bases for Assessments
32
(a) Psychologists base the opinions contained in their recommendations,
reports and diagnostic or evaluative statements,…on information and
techniques sufficient to substantiate their findings. (See also
28
45 CFR 164.520; HIPPA, U.S. Government Printing Office Electronic Code Of Federal
Regulations website at: Subpart E--PRIVACY OF INDIVIDUALLY IDENTIFIABLE HEALTH
INFORMATION (last accessed Aug. 1, 2012).
29
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(4)(B)2; See, MO. CODE REGS. ANN. tit. 20, § 2235-
2.080 about the record keeping duties concerning non-licensed persons [those that psychologists’
supervised].
30
APA CODE OF CONDUCT, supra note 10.
31
Id.
32
Id.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 13
Standard 2.04, Bases for Scientific and Professional Judgments.)
(b) Except as noted in 9.01c, psychologists provide opinions of the
psychological characteristics of individuals only after they have conducted an
examination of the individuals adequate to support their statements or
conclusions. When, despite reasonable efforts, such an examination is not
practical, psychologists document the efforts they made and the result of those
efforts, clarify the probable impact of their limited information on the reliability
and validity of their opinions and appropriately limit the nature and extent of
their conclusions or recommendations. (See also Standards 2.01, Boundaries of
Competence, and 9.06, Interpreting Assessment Results.)
(c) When psychologists conduct a record review or provide consultation or
supervision and an individual examination is not warranted or necessary for the
opinion, psychologists explain this and the sources of information on which
they based their conclusions and recommendations.
9.02 Use of Assessments
33
(a) Psychologists administer, adapt, score, interpret or use assessment
techniques, interviews, tests or instruments in a manner and for purposes that
are appropriate in light of the research on or evidence of the usefulness and
proper application of the techniques…
9.10 Explaining Assessment Results
34
Regardless of whether the scoring and interpretation are done by psychologists,
by employees or assistants or by automated or other outside services,
psychologists take reasonable steps to ensure that explanations of results are
given to the individual or designated representative…
Specific record keeping content becomes necessary in Missouri if “when it is
reasonably clear that the client is not benefitting from the relationship, and shall
prepare the client appropriately for such termination;
35
also, during a dual relationship
context record keeping becomes necessary:
36
33
Id.
34
Id.
35
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(7)(B).
36
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(5)(B).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 14
The psychologist shall not undertake or continue a professional relationship
with a client when the objectivity or competency of the psychologist is, or
could reasonably be expected to be impaired because of the psychologist’s
present or previous familial, social, sexual, emotional, financial, supervisory,
political, administrative or legal relationship with the client or a relevant person
associated with or related to the client. If a dual relationship develops or is
discovered after the professional relationship has been initiated, the
psychologist shall terminate the professional relationship in an appropriate
manner, shall notify the client in writing of this termination and shall assist the
client in obtaining services from another professional.
In light of the Missouri regulations, and the requirements of standards 9.01,
9.02, and 9.10, Missouri psychologists would use an intake and evaluation note,
progress note, and termination templates.
Maintenance and Security of Records
Missouri regulation mandates that the “psychologist shall store and dispose of
written, electronic and other records in such a manner as to ensure their
confidentiality. The psychologist shall maintain the confidentiality of all psychological
records in the psychologist’s possession or under the psychologist’s control except as
otherwise provided by law or pursuant to authorization of a client specifically
requesting or authorizing release or disclosure of the client’s psychological records.”
37
Under APA Code of Ethics Standard 4.01 - Maintaining Confidentiality,
38
“[p]sychologists have a primary obligation and take reasonable precautions to protect
confidential information obtained through or stored in any medium, recognizing that
the extent and limits of confidentiality may be regulated by law or established by
institutional rules or professional or scientific relationship.” (See also Standard 2.05,
Delegation of Work to Others.) This standard also supports the record keeping
standards:
6. Record Keeping and Fees
39
6.01 Documentation of Professional …Maintenance of Records
Psychologists create, and to the extent the records are under their control,
37
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(4)(B).
38
APA CODE OF ETHICS, supra note 10.
39
Id.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 15
maintain, disseminate, store, retain and dispose of records and data relating to
their professional and scientific work in order to (1) facilitate provision of
services later by them or by other professionals, (2) allow for replication of
research design and analyses, (3) meet institutional requirements, (4) ensure
accuracy of billing and payments, and (5) ensure compliance with law. (See also
Standard 4.01, Maintaining Confidentiality.)
The following regulation imposes obligations related to confidentiality and
recordkeeping for Missouri psychologists:
40
The psychologist shall limit access to client records and shall assure that all
persons working under his/her authority comply with the requirements for
confidentiality of client material.
HIPPA enables the patient to inspect and obtain Protected Health Information
(PHI) records, including Psychotherapy Notes created by the psychologist, as long as
those records are maintained.
41
In addition, patients have a right to amend any part of
the record;
42
Under this section, a denial of the proposed amendment can occur if the
record was not created by the psychologist (unless the patient provides a reasonable
basis to believe that the originator of PHI is no longer available to act on the
requested amendment) or if the record is accurate and complete (other subsections
are not discussed as they are unlikely to arise for psychologists). Finally, patients may
obtain an accounting as to who has accessed the PHI and the details about each
disclosure.
43
6.02 Maintenance, Dissemination, and Disposal of Confidential Records
of Professional…
44
(a) Psychologists maintain confidentiality in creating, storing, accessing,
transferring, and disposing of records under their control, whether these are
written, automated, or in any other medium. (See also Standards 4.01,
Maintaining Confidentiality, and 6.01, Documentation of Professional and
Scientific Work and Maintenance of Records.)
40
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(9)(D).
41
45 CFR 164.524.
42
45 CFR 164.526 (a).
43
45 CFR 164.528.
44
APA CODE OF ETHICS, supra note 10.
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 16
(b) If confidential information concerning recipients of psychological services
is entered into databases or systems of records available to persons whose
access has not been consented to by the recipient, psychologists use coding or
other techniques to avoid the inclusion of personal identifiers.
(c) Psychologists make plans in advance to facilitate the appropriate transfer
and to protect the confidentiality of records and data in the event of
psychologists' withdrawal from positions or practice. (See also Standards 3.12,
Interruption of Psychological Services, and 10.09, Interruption of Therapy.)
In addition, the following regulation imposes obligations related to continuity
of care and recordkeeping for Missouri psychologists:
45
The psychologist shall make provisions for the transfer or disposal of all
written or electronic records of the client in the event of the psychologist’s
death or incapacitation.
HIPPA establishes privacy protections for all transmissions of PHI records,
and requires specific patient authorizations (with a right of revocation) to transfer
PHI records to third parties.
46
Concrete security standards are established for all
electronic healthcare information (45 CFR 160).
6.03 Withholding Records for Nonpayment
47
Psychologists may not withhold records under their control that are requested
and needed for a client's/patient's emergency treatment solely because payment
has not been received.
Release and transfer of PHI records cannot be conditioned on payment or other
conditions (such as enrollment in the health plan that employs the psychologist).
48
Retention of Records
Psychologists must assure that all data entries in the professional records,
45
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(5)(B).
46
45 CFR 164.508.
47
APA CODE OF ETHICS, supra note 10; See, MO. REV. STAT. § 191.227. “Medical records to be
released to patient … [applies to] other duly licensed practitioners in this state.”
48
45 CFR 164.508 (b)(4).
Guidelines do not substitute for laws of each state and provincial jurisdiction. Such guidelines should not be used as a
substitute for obtaining personal legal advice and consultation before making decisions regarding EHRs. Because
statutory, administrative, and common law can change quickly, readers are well advised to seek legal advice about current
laws and rules in their jurisdiction. Page 17
including entries as supervisors, are maintained for a period of not fewer than five
years after the last date of service rendered, or not less than the time required by other
regulations, if that is longer.
49
Violations of the specific duty
A violation of the ethical rules of conduct for Missouri psychologists
constitutes unprofessional conduct and is sufficient reason for disciplinary action or
denial of either original licensure, reinstatement or renewal of licensure.
50
“…a complaint [may] be filed with the administrative hearing commission as
provided by chapter 621, RSMo, against any holder of any certificate of
registration or authority, permit or license required by this chapter or any person
who has failed to renew or has surrendered the person's certificate of
registration or authority, permit or license for any one or any combination of the
following causes: . . . (15) Being guilty of unethical conduct as defined in
“Ethical Rules of Conduct” as adopted by the committee and filed with the
secretary of state.”
51
49
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(4)(B).
50
MO. CODE REGS. ANN. tit. 20, § 2235-5.030(1)(D).
51
MO. REV. STAT. § 337.035. Denial, revocation, or suspension of license, grounds for--interested
third party, defined.
