Aug 29, 2022
What Goes in Your Notes? Interstate therapy practice and documentation for clients considering abortion or gender affirming care
Curt and Katie chat about documentation and practice questions related to abortion or gender affirming care when providing therapy to folks in states where these types of medical care are banned or will be banned soon. We look at medical documentation privacy concerns (related to HIPAA and the 21st Century Cures Act), how therapists avoid “aiding and abetting” a client to get an abortion, what to include in your notes, and special considerations related to duty to warn and child abuse reporting. This is a law and ethics continuing education podcourse.
Transcripts for this episode will be available at mtsgpodcast.com!
In this podcast episode we explore post-Roe documentation for therapists
We’ve heard a lot of questions about what therapists should do now that Roe has been overturned. We decided to dig into practice and documentation guidelines to help modern therapists navigate the changing times.
Medical documentation privacy concerns with interstate practice and the new abortion bans
“Your records aren't as private as you think that they are.” - Curt Widhalm, LMFT
- HIPAA and the 21st Century Cures Act
- The impact on clients who move from safe haven states to states with abortion bans
- The impact of the Counseling Compact (and similar mental health compacts) and how many participating states have trigger laws to ban or limit abortion
- Paying attention to jurisdictional differences and where the client lives
- Who qualifies as a HIPAA covered entity?
- Psychotherapy (Process) Notes versus Progress Notes
- Psychotherapy notes are not defined the same and/or protected in every state
- The impact of civil law suits on confidentiality of process notes
- The huge challenge of information blocking and who may pass along your treatment information
- Talk to an attorney or your professional organization when subpoenaed
How do you avoid “aiding and abetting” a client to get an abortion during mental health treatment?
- Processing feelings and helping client to make their own decisions
- Aiding and abetting can include telling them where to go, encouraging them to get an abortion, or providing practical support (like money or a ride)
- How to provide resources without aiding and abetting
- Self-empowerment and clients making their own decisions
- Liability and risk in practice (check with your malpractice insurance)
- Whether/how you let your clients know where you stand on the overturn of Roe v Wade
What do you include in your notes when talking about abortion and gender affirming care?
“You need to give meaningful consideration to what goes in [the mental health] record and you also want to be clear in what you're talking about with your clients. So, that way you're not unintentionally aiding and abetting a client who's living in one of these states where an abortion ban is currently in place.” – Curt Widhalm, LMFT
- What is relevant to your treatment goals?
- Documenting progress toward treatment goals
- Creating a policy related to medical decision-making
- Phrases that you can use to briefly describe what is happening in session
- How much to document and the recommendation to be less specific in progress notes when discussing medical decisions
The special considerations related to duty to warn and child abuse reporting when talking about abortion and gender affirming care
- No case law to guide us here
- The difference between permissive versus required reporting
- Vast differences across the states with all of the different pieces
- HIPAA says that we should not report, but we will be impacted by state laws
- Recommendations to pay attention to what is happening in the states where you practice and to identify advocacy opportunities to protect information, safe haven laws
Our Generous Sponsor for this episode of the Modern Therapist’s Survival Guide:
Thrizer
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Thrizer lets you become more accessible while remaining in complete control of your practice. A better experience for your clients during therapy means higher retention. Money won't be the reason they quit on therapy. Sign up using bit.ly/moderntherapists if you want to test Thrizer completely risk free! Sign up for Thrizer with code 'moderntherapists' for 1 month of no credit card fees or payment processing fees! That’s right - you will get one month of no payment processing fees, meaning you earn 100% of your cash rate during that time.
Receive Continuing Education for this Episode of the Modern Therapist’s Survival Guide
Hey modern therapists, we’re so excited to offer the opportunity for 1 unit of continuing education for this podcast episode – Therapy Reimagined is bringing you the Modern Therapist Learning Community!
Once you’ve listened to this episode, to get CE credit you just need to go to moderntherapistcommunity.com/podcourse, register for your free profile, purchase this course, pass the post-test, and complete the evaluation! Once that’s all completed - you’ll get a CE certificate in your profile or you can download it for your records. For our current list of CE approvals, check out moderntherapistcommunity.com.
You can find this full course (including handouts and resources) here: https://moderntherapistcommunity.com/podcourse/
Continuing Education Approvals:
When we are airing this podcast episode, we have the following CE approval. Please check back as we add other approval bodies: Continuing Education Information
CAMFT CEPA: Therapy Reimagined is approved by the California Association of Marriage and Family Therapists to sponsor continuing education for LMFTs, LPCCs, LCSWs, and LEPs (CAMFT CEPA provider #132270). Therapy Reimagined maintains responsibility for this program and its content. Courses meet the qualifications for the listed hours of continuing education credit for LMFTs, LCSWs, LPCCs, and/or LEPs as required by the California Board of Behavioral Sciences. We are working on additional provider approvals, but solely are able to provide CAMFT CEs at this time. Please check with your licensing body to ensure that they will accept this as an equivalent learning credit.
Resources for Modern Therapists mentioned in this Podcast Episode:
We’ve pulled together resources mentioned in this episode and put together some handy-dandy links. Please note that some of the links below may be affiliate links, so if you purchase after clicking below, we may get a little bit of cash in our pockets. We thank you in advance!
Person-Centered Tech (help to become HIPAA compliant)
Frequently asked questions about abortion laws and psychology practice (apaservices.org)
HIPAA, Psychotherapy Notes, and Other Mental Health Records by Holland and Hart
Additional references mentioned in this continuing education podcast:
Holloway, J.D. (2003). More protections for patients and psychologists under HIPAA. American Psychological Association. https://www.apa.org/monitor/feb03/hipaa#:~:text=Under%20HIPAA%2C%20psychotherapy%20notes%20are,can%20contain%20information%20that%20is
Stranger, K. (2020). HIPAA, Psychotherapy Notes, and Other Mental Health Records. https://www.jdsupra.com/legalnews/hipaa-psychotherapy-notes-and-other-42359/
U.S. Department of Health and Human Services (2013). Summary of the HIPAA Privacy Rule. https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html#:~:text=The%20Privacy%20Rule%20protects%20all,health%20information%20(PHI).%22
Zubrzycki, C. (2022) Abortion’s Interoperability Trap: How the Law of Medical Records Will Facilitate Interstate Persecution of Contested Medical Procedures, and What to Do about It. Yale Law Journal Forum, Forthcoming, http://dx.doi.org/10.2139/ssrn.4147900
*The full reference list can be found in the course on our learning platform.
Relevant Episodes of MTSG Podcast:
Working with Trans Clients: Trans Resilience and Gender Euphoria: An interview with Beck Gee-Cohen
Is the Counseling Compact Good for Therapists?
Now Therapists Have to Document Every F*cking Thing in Our Progress Notes?
Noteworthy Documentation: An interview with Dr. Ben Caldwell (on the 21st Century Cures Act)
Who we are:
Curt Widhalm, LMFT
Curt Widhalm is in private practice in the Los Angeles area. He is the cofounder of the Therapy Reimagined conference, an Adjunct Professor at Pepperdine University and CSUN, a former Subject Matter Expert for the California Board of Behavioral Sciences, former CFO of the California Association of Marriage and Family Therapists, and a loving husband and father. He is 1/2 great person, 1/2 provocateur, and 1/2 geek, in that order. He dabbles in the dark art of making "dad jokes" and usually has a half-empty cup of coffee somewhere nearby. Learn more at: www.curtwidhalm.com
Katie Vernoy, LMFT
Katie Vernoy is a Licensed Marriage and Family Therapist, coach, and consultant supporting leaders, visionaries, executives, and helping professionals to create sustainable careers. Katie, with Curt, has developed workshops and a conference, Therapy Reimagined, to support therapists navigating through the modern challenges of this profession. Katie is also a former President of the California Association of Marriage and Family Therapists. In her spare time, Katie is secretly siphoning off Curt's youthful energy, so that she can take over the world. Learn more at: www.katievernoy.com
A Quick Note:
Our opinions are our own. We are only speaking for ourselves – except when we speak for each other, or over each other. We’re working on it.
Our guests are also only speaking for themselves and have their own opinions. We aren’t trying to take their voice, and no one speaks for us either. Mostly because they don’t want to, but hey.
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Music by Crystal Grooms Mangano https://groomsymusic.com/