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.

Transcript

Click here to scroll to the podcast transcript.

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

Thrizer is a new modern billing platform for therapists that was built on the belief that therapy should be accessible AND clinicians should earn what they are worth. Their platform automatically gets clients reimbursed by their insurance after every session. Just by billing your clients through Thrizer, you can potentially save them hundreds every month, with no extra work on your end. Every time you bill a client through Thrizer, an insurance claim is automatically generated and sent directly to the client’s insurance. From there, Thrizer provides concierge support to ensure clients get their reimbursement quickly, directly into their bank account. By eliminating reimbursement by check, confusion around benefits, and obscurity with reimbursement status, they allow your clients to focus on what actually matters rather than worrying about their money. It is very quick to get set up and it works great in completement with EHR systems. Their team is super helpful and responsive, and the founder is actually a long-time therapy client who grew frustrated with his reimbursement times The best part is you don’t need to give up your rate. They charge a standard 3% payment processing fee!

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 https://moderntherapistcommunity.com/courses/what-goes-in-your-notes-interstate-therapy-practice-and-documentation-for-clients-considering-abortion-or-gender-affirming-care, 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/courses/what-goes-in-your-notes-interstate-therapy-practice-and-documentation-for-clients-considering-abortion-or-gender-affirming-care/

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!

21st Century Cures Act

Person-Centered Tech (help to become HIPAA compliant)

What the End of Roe v. Wade Does (and Doesn’t) Mean for Your Relationship With Your Therapist | by Monika Sudakov | Jul, 2022 | Medium

Frequently asked questions about abortion laws and psychology practice (apaservices.org)

Information blocking FAQs 

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:

What Therapists Need to Know about Abortion and Termination for Medical Reasons: An Interview with Jane Armstrong

The Practicalities of Mental Health and Gender Affirming Care for Trans Youth: An Interview with Jordan Held, LCSW

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:

Picture of Curt Widhalm, LMFT, co-host of the Modern Therapist's Survival Guide podcast; a nice young man with a glorious beard.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: http://www.curtwidhalm.com

Picture of Katie Vernoy, LMFT, co-host of the Modern Therapist's Survival Guide podcastKatie 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: http://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.

Stay in Touch with Curt, Katie, and the whole Therapy Reimagined #TherapyMovement:

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Consultation services with Curt Widhalm or Katie Vernoy:

The Fifty-Minute Hour

Connect with the Modern Therapist Community:

Our Facebook Group – The Modern Therapists Group

Modern Therapist’s Survival Guide Creative Credits:

Voice Over by DW McCann https://www.facebook.com/McCannDW/

Music by Crystal Grooms Mangano https://groomsymusic.com/

Transcript for this episode of the Modern Therapist’s Survival Guide podcast (Autogenerated):

Curt Widhalm 0:00
This episode of The Modern Therapist’s Survival Guide is brought to you by Thrizer.

Katie Vernoy 0:03
Thrizer is a modern billing platform for private pay therapists. Their platform automatically gets clients reimbursed by their insurance after every session. Just by billing your clients through Thrizer you can potentially save them hundreds every month with no extra work on your end. The best part is you don’t have to give up your rates they charge a standard 3% processing fee.

Curt Widhalm 0:24
Listen at the end of the episode for more information on a special offer from Thrizer.

Announcer 0:29
You’re listening to The Modern Therapist’s Survival Guide where therapists live, breathe and practice as human beings. To support you as a whole person and a therapist, here are your hosts, Curt Widhalm and Katie Vernoy.

Curt Widhalm 0:44
Hey, modern therapists, we’re so excited to offer the opportunity for one unit of continuing education for this podcast episode. Once you’ve listened to this episode, to get CE credit, you just need to go to moderntherapistscommunity.com, 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 a current list of our CE approvals, check out moderntherapistscommunity.com.

Katie Vernoy 1:17
Once again, hop over to moderntherapistscommunity.com for one CE once you’ve listened.

Curt Widhalm 1:24
Welcome back modern therapists. This is The Modern Therapist’s Survival Guide. I’m Curt Widhalm with Katie Vernoy. And this is the podcast for therapists where we talk about the things that affect our practices, our lives, the intersections of advocacy, and even just figuring out what the hell we’re doing. And this is another one of our CE related episodes. We have come across some questions as far as in a post Roe v. Wade overturned world, what does that mean, as far as our practice goes? And we had an episode earlier on working with TFMR related cases, we can include a link to that in our show notes. But Katie and I were talking about what about in some of the places where some of the states that have trigger abortion laws that went into effect, and especially as we overlay that with things like the Counseling Compact, or practitioners who are licensed in multiple states where the laws on these things are going to vary quite a bit differently. And in the process of researching for this episode, we came across a law article that pointed out more scary things than good. And this article is called “Abortion’s Interoperability Trap: How the Law of Medical Records Will Facilitate Interstate Persecution of Contested Medical Procedures, and What to Do about It” by Carleen Zubrzycki. I apologize if that’s not how that’s pronounced, but this is the article that we came across. We’re going to talk about this throughout this episode, mostly in the context of working with clients who are considering abortion. This episode is also going to apply to working with transgender youth, and particularly in those states that have laws or are considering laws that may very well follow a lot of the ways that some of these abortion trigger laws have been put into place. We’re choosing to lean mostly to the abortion side of this discussion because those laws are already in place. What we’ve seen as far as some of the laws for working with transgender youths have kind of followed the form of a lot of those laws. So we’re really talking about both throughout this episode here.

Katie Vernoy 3:54
And we do have an episode or a couple of episodes actually on working with trans youth. If there’s if that’s of interest and we’ll add those to the show notes as well.

Curt Widhalm 4:03
This article on abortion’s interoperability trap, mostly speaks to medical records, but it’s healthcare records in general. And when I first read through this article, I was like, okay, mental health usually follows a lot of the form of these laws. It’s something where we have a lot different relationship with our clients than medical providers do. But when it comes to things like HIPAA and the 21st Century Cures Act, those things totally apply to us as well. And many of these things have yet to be punished or yet to have opinions being given by attorneys or courts or anything like that, that really tell us how to operate in some of the gray areas that are here. And so a lot of legal experts are anxiously awaiting somebody to get in trouble and have some opinions start being formed. So that way advice can be given. We’re gonna spend the first part of this episode talking about some of these gaps here. And we’ll relay some suggestions that we’ve come across from some of the professional organizations, as well as from some of our practices, as well. And just my experience as a law and ethics professor and ethics committee member with the California Association of Marriage and Family Therapists. I’m not speaking for them, but that’s where my experience is. In order to hopefully give those of us some guidance as far as if this is something that comes across in your practice.

Katie Vernoy 5:42
I think the thing that I want folks to know, as we’re heading into the meat of this episode is there are a lot of folks, I Curt and I are in this place where we’re in states that are not going to have any problems. But when you talk to me, Curt about why people need to listen to this episode, one of one of the reasons is, I may have a client that moves into a state that is different. And if I’m talking about medical decisions related to abortion, or gender affirming care, and they go into that state where it’s illegal and start, you know, and continue forward with that process. People may ask for my records, and it could impact my clients. So I think for for that reason, as well as people practicing across state lines with states that have different laws, and just knowing how to navigate if you’re living in a state where things have become illegal, or at risk or just a mess, I think it’s really important to think about how you document, how you talk about it, how you set your practice up, so that you can continue to have important conversations and provide the support to your clients that they need, and not have your records potentially be something that gets them in trouble in the long run.

Curt Widhalm 6:55
Oh, and jumping into this. One of the things that I looked at was with the Counseling Compact and with some of the things that have yet to be figured out about it, I overlaid the states that are already involved or very close to enacting the Counseling Compact with the states that had triggered laws around abortion as soon as Roe v. Wade was overturned by SCOTUS. And on that list is states like Tennessee and Mississippi where they already have very strict abortion things that went into effect almost immediately. Other states like Florida, Kentucky, Louisiana, Utah, are ones that have pending legislation or court orders to stop things that were put into effect right away. The big takeaway from this is, you’re going to want to talk to attorneys both before and when these situations come up. Because this jurisdictional difference from state to state is wherever your client is, if you’re practicing legally there, whether you’re licensed in multiple states, whether you’re participating in something like the Counseling Compact or PSYPACT. This episode, we’re leaning a little bit more towards the counseling compact side of things just for our our continuing education audience here. But you’re going to be expected to follow the laws of the jurisdiction where the clients lives and is located not necessarily where you practice or where you’re residing, or where your brick and mortar practice might be. So that means that you’ve got to be aware of the shifting dynamics of laws in a multitude of states if you’re practicing. And this really brings up that a lot of the things that have come about because of HIPAA, or because of the 21st Century Cures Act, actually make it to where some of the privacy things as Katie is pointing out, and how I kind of sold her on this is really an episode about documentation more than it is about Roe v. Wade

Katie Vernoy 9:08
CYA

Curt Widhalm 9:10
Yeah. …is your records aren’t as private as you think that they are. That you know if I can just kind of turn this to you and put you on the spot here, Katie is What are your ideas about who gets to see records?

Katie Vernoy 9:29
Well, I think that I have a slightly different perspective than I think a lot of private practice clinicians because I did kind of kind of quote unquote, grow up in community mental health. But clients can certainly see their records. They can request them and see their records. There are also insurance companies that can request to see records and they can be subpoenaed or have a court order come down and there could be decision for records to be released there. My assumption is there’s also been I think it was what was the the act that was enabled after 911? That basically said that…

Curt Widhalm 10:05
The Patriot Act

Katie Vernoy 10:06
…the Patriot Act, there’s a lot of records that you could just, you know, to be lost to the ether. And then there’s also if I send records to another doctor, for example, or to another provider, that becomes part of their chart. And so then I then lose control of where it goes after that release. So I’m different because I’m like, Oh, well, they’re confidential. I think a lot of therapists are just like It’s confidential. I don’t even bill insurance. So how would it ever be released? But there are a lot of ways that I think that records could be released that could impact not just, you know, kind of how people see you and how well your documentation is looking but also negatively impact your client.

Curt Widhalm 10:56
So you’re speaking to a few things. And I’m going to dive in on some of these in no particular order, because I’m going off of memory here. So we might even start back. But let’s, you know, everybody’s talking about HIPAA. First, let’s talk about who HIPAA applies to. HIPAA applies to covered entities, which most of us have probably been like, I either bill insurance or I bill Medicare, I’m charging something, using the internet using electronic means to get a third party payer to pay for stuff. And that would be a semi adequate description of who’s actually a covered entity. Now, I’ve come across a number of therapists in my career, and especially as a podcast host, who are like, oh, yeah, I get to share things about my practice. I’m not a covered entity. That’s why I provide super bills. And I tell them, You’re a covered entity, if like your electronic health record is issuing super bills, that is, with the intent of providing mental health diagnostic information to a third party for reimbursement. It’s just with extra steps. So you are probably a covered entity. If this is the first time that a lot of you are coming to that conclusion, I encourage you, at the end of this podcast episode, go make sure that the rest of your practice is following all of the HIPAA rules.

Katie Vernoy 12:23
And we and our friends over at Person Centered Tech probably can help you with getting HIPAA compliant.

Curt Widhalm 12:30
So, if you don’t think that you’re HIPAA covered, think again. Especially if you’re a modern therapist, even if you aren’t part of any network. Now, within HIPAA what Katie is referring to as far as sharing information falls under the Privacy Rule. And this is HIPAA, which is a federal law is basically saying, provide the least amount of information that is necessary for the purpose of sharing this. So as Katie is talking about, yeah, insurance companies can ask for some of this information, diagnostics, number of treatment sessions, client progress, that kind of stuff. But within the context of asking about things like what else you guys talking about in session, this is where HIPAA provides us with convenient words. Psychotherapy notes, KT quiz time. What’s what’s the difference between the psychotherapy record and the psychotherapy notes?

Katie Vernoy 13:32
Quiz time, really? Okay. The second…

Curt Widhalm 13:37
30 seconds on the clock, we’ll do you know, million dollar pyramid or whatever game that you want for quiz show here.

Katie Vernoy 13:42
Well, I think the short answer is I don’t do so psychotherapy notes. Because I was always told that pretty much anything you write down actually should be in the record. But the idea is psychotherapy notes are your own little notes that you put along to the side. Or are those process notes. I don’t remember which ones considered which one, but um, the record itself is the medical it’s medical record information and the notes, process notes, psychotherapy notes, are they the same thing?

Curt Widhalm 14:10
So what we have is, we have the medical record, we have psychotherapy notes, and then we have our colloquial just kind of field definition of process notes, which most of us use interchangeably with psychotherapy notes.

Katie Vernoy 14:26
Okay, so the psychotherapy record, is everything but the progress notes?

Curt Widhalm 14:31
Yes.

Katie Vernoy 14:32
Okay. And then the progress notes theoretically have a little bit more protection.

Curt Widhalm 14:37
No, vice versa. The progress notes include things like the date of sessions, what time sessions start and end, client treatment goals, progress towards those goals, interventions, use that kind of stuff, the meat to the bones of therapy, just kind of the snapshot in time of where a client is.

Katie Vernoy 14:56
Okay

Curt Widhalm 14:57
The psychotherapy notes are just generally considered to be other things that a therapist might write down that don’t include the things that are in the progress notes. So if you’re putting things in your psychotherapy notes that are actually progress notes, congratulations, you’ve just written two progress notes.

Katie Vernoy 15:20
So but the idea just so we don’t get too far ahead of what everybody else is thinking about right now, the psychotherapy notes or what I had been told were quote unquote, process notes. So the psychotherapy notes are things that go into more your case conceptualization, maybe psychodynamic psychobabble. It’s beyond what the progress notes that say about progress towards treatment.

Curt Widhalm 15:47
Yes

Katie Vernoy 15:47
And all that other the meat and potatoes of stuff. And those psychotherapy notes, as long as they don’t have progress and information, are they protected?

Curt Widhalm 15:55
As long as they are kept separate from the progress notes.

Katie Vernoy 16:01
Okay.

Curt Widhalm 16:02
So if you have an electronic health system that has a portion that says progress notes, and a portion that says psychotherapy note, those are, I don’t know, kept on two different servers in the cloud. I don’t know how the back end of internet works on those kinds of things. But in old school terms, it would be having them in two separate file cabinets. It is they need to be kept separate. If they’re kept together, then they all fall under progress notes.

Katie Vernoy 16:31
So even if you have like a psychotherapy notes folder that you pull out, and you put back into the main chart, that is not separate enough.

Curt Widhalm 16:39
I would keep them more separate than that.

Katie Vernoy 16:41
All right. All right. Okay.

Curt Widhalm 16:44
HIPAA makes this definition difference that there is a thing called psychotherapy notes. Most states don’t have the same separation of there’s progress notes, and there’s psychotherapy notes. And where this gets into a little bit more of a thought process, especially as we start considering providing services, and, you know, in worst case scenarios, getting subpoenas from other states, is when you get subpoenas that ask for medical records, because HIPAA at a national level, at a federal level says, All right, therapist, medical provider, no therapist, you’re probably going to have some musings, those things can be kept separate to keep you on track than what’s in the records. That makes sense. And those are actually your own private property that the patient cannot access. We’ll come back to that point.

Katie Vernoy 17:50
Okay.

Curt Widhalm 17:52
State laws don’t make this distinction. Now, Texas gets to be the big bad guy in this situation, because they’re…

Katie Vernoy 18:01
They get to be the bad big bad guy in a lot of situations.

Curt Widhalm 18:05
Your words, not mine. All right, I’m not messing with Texas Texans. But Texas gets to be the big bad guy in this situation, because they have famously or infamously put forth legislation that not only allows for civil suits, civil lawsuits by any member of any person in Texas, to go after people who aid and abet people seeking abortions, whether it’s…

Katie Vernoy 18:37
The bounty, the bounty law.

Curt Widhalm 18:39
Yes. Now, that bounty while includes people who are out of state. So those of you who don’t live in Texas, pay attention, because if you’re seeing clients who are in Texas, then you are potentially going to be in a situation where theoretically, depending on how your session goes, could be considered aiding and abetting a client in seeking an abortion. Now short of just not providing mental health treatment to anybody in Texas, which one of our lawyer friends advised us off the record. Is what is this potential that if a case was to come up that a subpoena could show up at your door from the good old state of Texas, saying, We believe that you’re aiding and abetting, we want all of your records.

Katie Vernoy 19:35
And that’s because it’s not a medical situation. It’s not a HIPAA situation. It’s all records because it’s civil? Is that what your was that what you’re leaning? I would, even my little handwritten notes would be part of this thing?

Curt Widhalm 19:50
Now, I have been told by a number of people incorrectly, that psychotherapy notes should only ever be accessed by the person writing the notes. Now, it stands, and this is under a faulty understanding of what psychotherapy notes are under HIPAA. HIPAA has a plain language law that says that the psychotherapy notes cannot be accessed by the patient.

Katie Vernoy 20:22
Okay?

Curt Widhalm 20:26
If you’re not connecting lines, yet, there are things that you’ve even said in this podcast already yourself. That means that other people can access these records, but the patient can’t. And this has also spoken to the law article that we referenced at the top of the episode, which means all of the good intentions of things like HIPAA, of things like the 21st Century Cures Act, that are supposed to make it to where information flows were readily between providers, means that patients don’t necessarily have all of the privacy and control over the things that are being written down about their services. In prepping for this episode a little bit, some of the musings that we had was, well, if these discussions were to come up, if a client in sessions like hey, I’m in one of these trigger states, Curt, Katie, you’re lucky you’re in one of those blue safe haven states, one of those states that has passed a protection law that if a subpoena from Texas comes after you, your state says no, we are protecting our providers here. You can’t come after us, Texas.

Katie Vernoy 21:36
Yes.

Curt Widhalm 21:37
Katie, you mentioned that earlier, you and I are protected other states like Connecticut, Arizona has got some things in the makings that are if they’re not passed, or at least introduced at the time of recording this episode. But those of you who aren’t in one of those safe haven states might be in a little bit of a difficult situation here because

Katie Vernoy 22:03
I was thinking pickle.

Curt Widhalm 22:04
A pickle

Katie Vernoy 22:07
Would they be in a little bit of a pickle?

Curt Widhalm 22:09
Little bit of a pickle, don’t take advice from a podcast for therapists. At that point, contact your attorney. But these are things that you want to keep in mind ahead of time is that you can’t just keep two sets of books, and two sets of records that one is progress notes that Wink wink, don’t necessarily talk about things, but you jot down everything else that you’re talking about in your process notes or psychotherapy notes. Because there are a multitude of places that this information can be shared without the client’s consent. As Katie mentioned, towards the top of the episode here. One is, in the course of treatments, where in transferring a client to another therapist even out of state, if there’s a records request and your clients like yeah, sure, go ahead and send us all the records. If that includes the psychotherapy notes, then you no longer control what’s in that record, either. And depending on the therapist that you’re sharing it with, they may pass on that information, which can eventually circle back to you. And if you have been aiding and abetting, you could be held liable.

Katie Vernoy 23:24
So okay, so this is why we’re all freaked out, is because there’s a lot of what ifs and we don’t know when our client is going to have to move to Texas. And so I think it’s there’s that piece, but to me when when you’re talking about this part of this is making sure that you’re not aiding and abetting. Part of it’s making sure that you’re actually documenting appropriately, that you’re not aiding and abetting, and that you’re not putting stuff in the notes or the psychotherapy notes that would potentially get you or your client in trouble. And it keeps coming to me that maybe we just shouldn’t have psychotherapy notes, because there’s a lot of wiggliness around them that make it hard to know if they’re truly protected.

Curt Widhalm 24:09
Well, and that’s ultimately going to be probably our recommendation here. But I’m going to give just another example here of other situations where your psychotherapy notes are not as protected as you might think that they are. And this goes to a case called Evenson v. Hartford Life & Annuity Insurance Company. And this was a situation where a therapy client died, and their life insurance policy was not given to their widow because the insurance company said We were not informed about this deceased person having been in treatment for alcohol addiction had gone to an inpatient, and that makes the life insurance policy void. And in the course of this case, the therapist was subpoenaed for records and released progress notes, which, you know, under the advice of attorneys, that’s what you have to do. That’s what you have to do. And this wasn’t considered good enough. And the therapist in this case, decided to invoke HIPAAs rule as far as psychotherapy notes are not accessible by the patient, even though this is the patient’s widow. If this was not available to the patient, then the widow should not have access to it either. And this therapist was shot down. So in the interpretation of this, the court ruled that in the plain text language of HIPAA, that psychotherapy notes are not accessible by the individual that the notes are about. Therefore, other people may access them when a subpoena requests all records. So if you have further advice here is even in death, your record might actually be more accessible, your records about a client might actually be more accessible to the people taking over their estate than it actually even was to the client. So if you don’t need more evidence to not have psychotherapy notes on top of your progress notes, here’s more.

Katie Vernoy 26:37
That makes sense to me. And that’s, I think, a reason that I don’t do psychotherapy notes. Because to me, if I can translate my case conceptualization and the things I’m doing into the actual chart, it’s all in one place, it feels very clean. And other things, I might have musings, I might have other things, but those things, shift into an actual progress note so that it is official record, I recognize it as official record. And any work in process is then shredded, and off it goes. It’s not a record. Does that make sense? Am I doing it right?

Curt Widhalm 27:15
Yes.

Katie Vernoy 27:16
Okay. So don’t keep psychotherapy notes, if at all possible. They’re not protected. Step one. Okay. You also keep saying don’t aid and abet. And you also are talking about, you know, kind of documentation, and how we should actually document because we’ve said, okay, don’t keep psychotherapy notes. But what do we actually include in our progress notes? And how do we avoid it aiding and abetting? So where are we going next?

Curt Widhalm 27:41
So I want to finish this before we get into what actually goes in the notes, because there’s another piece of the 21st Century Cures Act that specifically gets into information blocking, because I know that there’s therapists out there who are like, well, if I have a client talking about this stuff, I’m just gonna throw every obstacle in the way to not have to share any notes that I write down about these sessions with anybody.

Katie Vernoy 28:06
Got it.

Curt Widhalm 28:06
And this is one thing that the 21st Century Cures Act put into place to specifically prevent providers from doing. That the goals behind HIPAA and 21st Century Cures Act are largely to make information sharing electronically. Easier. And this is a big piece of contention in Carleen’s law article is that stopping providers from information blocking, from engaging in practices that are likely to interfere with, prevent or materially discourage access exchange, or the use of electronic health information actually gives IT companies a lot of ability to just hoard information and makes it to where some of this information, especially if you’re involved in insurance networks, think of, you know, I’m thinking of hospital systems like Kaiser Permanente where a lot of the integrated medical health records are all going to be shared across hospitals, makes that information easily accessible by anybody who’s treating the client, which may include people who aren’t you. And so…

Katie Vernoy 29:17
Wait, but wait. Before you before you, I want to clarify because you said technic tech companies could forward information on are you talking about like if we’re blocking information on a client, and our electronic health record is forced to pass that information on by some sort of entity that seems to have the right to it, can they actually forward our information on? I mean, you’re you’re talking about in the hospital system and it seems like that’s this huge gigantic system that allows for tons of tons of sharing, but little little private practice me. Can someone electronically access my records without me knowing? or without, without if I’m trying to block it, can there be some way that someone else could for that information on?

Curt Widhalm 30:08
There are things like insurance companies that may provide information to a future provider that says, Oh, you’ve received these kinds of treatments before. So if you’re submitting things like super bills, even to clients, and they submit those to the insurance company, it stands that that information is being forwarded on without your knowledge.

Katie Vernoy 30:28
Sure, I don’t even think about when I was working in community mental health and all of our clients that were on Medicaid/Medical in California, there was a record of all of the different treatments, all the different diagnoses, and you could go in and access it through a portal or something where all of that information was present. So so I could see that being something where if you’ve submitted something, I guess I just was getting worried that you were saying that, that if you had an electronic health record that someone might be able to forward information on.

Curt Widhalm 31:01
No, and this is going to be within the HIPAA laws that govern the IT aspects of that. So if that’s where you were thinking, I was saying things, Katie clarified very correctly there that some of this information just gets passed along to new providers. It’s not like, Oh, I’m typing into my electronic medical record and now, you know, some computer jockey is sitting next to a server room is just able to like peek in and throw it out.

Katie Vernoy 31:30
No, that’s not what I was saying. It was more like if I’m, I’m actively if someone is trying, you know, court order, I’m trying to push back against a court order, I’m saying no, I’m gonna block this information. Could the the legal system basically, subpoena through my health record, saying, This is why we need to have access to this, whether it’s, you know, some sort of act, the Patriot Act or whatever act where they could, then… it’s kind of like Apple having to release phone information, confidential? Like, could that happen, I guess, is what I was trying to ask.

Curt Widhalm 32:08
I mean, subpoenas can ask for anything. And a lot of times the subpoenas are going to ask for all records. And your job, in most cases is talk with A an attorney and B your client about what information can be shared. But, again, getting into this patchwork of different laws across different states. It might just be the ability to invoke psychotherapist patient privilege, it might be something where only giving progress notes meet the requirements of it, you’re gonna want to get clarity on this because, frankly, a lot of attorneys and a lot of judges who aren’t well versed in HIPAA and medical document sort of things aren’t going to know. And therefore, the subpoenas aren’t going to be written very clearly. So when they says, you know, release records, is the legal person that I am, the presence of the word all there might include psychotherapy notes. So talk with an attorney at that point.

Katie Vernoy 33:22
Okay, so to clarify, at this point, then it’s not in your best interest to do psychotherapy notes, because they’re not really protected. And they may not be, they may be subpoenaed regardless, and you may be forced to release them, and your clients can’t even look at them. And so other they, they won’t even know what’s being released, it would be the people around them that could grab it. But the other piece is don’t expect that you can actually block release of information, because at some point, it will, it can escalate to the point where you are commanded or whatever the right word is to release records. And so and/or you might have already done it through a super bill or, or sharing information with someone else. And so get your notes in order.

Curt Widhalm 34:13
Get your notes in order. So now that we’ve covered all of the bad things that can happen with notes. We’re not saying all of them but we’ve spent a sufficient amount of time. Let’s get to the meat of when this does come up in sessions, and it likely will for some of us.

Katie Vernoy 34:37
Meaning abortion

Curt Widhalm 34:38
Abortion or gender affirming care for trans youth. When this inevitably comes up, I’m going to thank Dr. Ben Caldwell for some conversations that we had in preparation for this episode and some of the advice that he was given but what goes in the notes you know, we’ve had some of these discussions before, there seems to be kind of varying stances from writing as minimal as possible to documenting every single thing that is said in session. We’ve had podcasts covering the range of this, what to somewhat scary degrees. As far as cursing in session, we’ll include that link in the show notes. But what Dr. Caldwell told me is that, if this was to come up in session, a practitioner needs to look at Is this part of what treatment is actually about? In other words, if a client comes to you and is working on other things, family system issues…

Katie Vernoy 35:49
Or no family systems issues is a tough one. Let’s talk about depression, not getting out of bed and unable to go to work.

Curt Widhalm 35:56
And the client finds out that they are pregnant, it is unwanted, and therefore, it is not substantially something that they came to therapy about.

Katie Vernoy 36:09
Sure.

Curt Widhalm 36:10
You as the practitioner, need to decide is this actually part of treatments? Is…

Katie Vernoy 36:16
Is it relevant enough to put in the notes? Is that what you’re saying?

Curt Widhalm 36:19
Yes. So you need to give meaningful consideration to what goes in that 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.

Katie Vernoy 36:45
But what does it actually mean for a therapist to aid and abet someone getting an abortion?

Curt Widhalm 36:51
So there is a difference between Oh, you are being presented with this very meaningful thing going on in your life. And I’m guessing that you’re having a lot of feelings about it. Let’s talk about those feelings. Is the needle to thread on this.

Katie Vernoy 37:11
But let’s say they’re saying I don’t know what to do, how do I make this decision? I mean, therapists help people figure themselves out and make decisions. If I help them to sort through their thoughts, their feelings, and come to a decision is that aiding and abetting.

Curt Widhalm 37:28
Helping process feelings is different than here’s where you go to get an abortion. Here’s, here’s how you, here’s how you can get there. Here’s, you know…

Katie Vernoy 37:42
Let me pay for it.

Curt Widhalm 37:41
…stories that you can tell. Yeah, exactly. Those would be things like aiding and abetting.

Katie Vernoy 37:44
Okay, so but having having the conversations that we’ve had to to this point, where we provide space for them to process what’s going on. We help them figure out what the what decision they want to make by helping to reflect back and provide them with not guidance on what to do, but guidance on how to make a decision. We’re good. But the minute that we start telling them where to go, and what what bus route to take, and here’s, here’s a little bit of money, blah, blah, blah, like when we’re actually helping them to get the procedure we’ve stepped across a line. But when we’re talking about resources, I think it’s important that we’re able to send them to reputable resources. I mean, that’s what we do and all things when people are looking for guidance on how to make a decision or those types of things. Right? I mean, can we actually share resources?

Curt Widhalm 38:39
So specific to Dr. Caldwell going to attribute this to him: It’s one thing to discuss with the client, the mental health needs and stressors that come with an unplanned pregnancy, it’s another to encourage or empower the client to seek and obtain an abortion.

Katie Vernoy 38:57
Okay

Curt Widhalm 38:58
So this is where I know that a lot of our modern therapists community, a lot of our listeners here are on the social justice side of things. We have a lot of, you know, strong beliefs and things. Many people are, frankly, just absolutely pissed off about, you know, Roe v Wade being overturned.

Katie Vernoy 39:18
Sure

Curt Widhalm 39:20
We, in a lot of situations, encourage you to be very open about your stances on things so that way clients have a better decision making process as far as who’s a good provider for me? Stop short of giving advice in these situations. And there’s an APA article that will include in the show notes, the American Psychological Association on kind of some really good pointers as far as navigating some of this and it starts with having a policy that is included in your informed consent as far as how you’ll talk about medical procedures. Whether it includes abortion, whether it includes gender affirming care, or other medical things is to have just a blanket policy to start with, as far as my role is to talk about the emotional processes involved in decision making, but I don’t have the background, or give advice on what kinds of medical procedures you should get or how you should obtain them.

Katie Vernoy 40:32
I think you’re saying the same thing that I’m saying. I think it just gets hard because in a vacuum, it sounds easy to do that. In reality, someone’s coming to you at a really challenging time of their life and saying, What should I do? What should I do? I don’t know what to do. And I think you get them to a place of self empowerment. But they may need resources to understand what their options are, they may need resources to to get to where they want to go. I mean, if someone says, I’m going to get an abortion, I don’t know what to do. I’m not going to say sorry, I can’t help you. I’m going to say, Okay, well, where can we find some resources for people that can can help you with what you’ve decided to do? I mean, that to me, even as I’m saying it sounds like it could be called aiding and abetting. Right? I mean, I think this is where people get really concerned is that when I start thinking about my actual real life clients, and what they may be asking from me, and in this time of need, I’m saying, Nope, I gotta stop right there. Because I’m a therapist, and I don’t want to get in trouble. I don’t want to bounty from Texas on my head. I think it becomes really hard. And so to me, I think as long as I’m not driving them to the clinic, I’m not giving them money. I’m not telling them to get an abortion, I feel like I’m safe. But it seems like you’re purposely not agreeing with me on that. Like you’re you’re saying it’s a little bit more nuanced than that.

Curt Widhalm 41:59
So once again, two things that Dr. Caldwell told me This doesn’t mean that you should fail to provide or fail to make note of providing referrals appropriate to the client’s clinical needs, it just needs to be clear that those referrals are indeed consistent with the client’s needs and were provided at the client’s request.

Katie Vernoy 42:18
Ah, okay.

Curt Widhalm 42:19
Now, I, Dr. Caldwell, you, none of us are attorneys, and…

Katie Vernoy 42:26
Not even a little bit

Curt Widhalm 42:27
…you should talk with an attorney. And not just take our advice as gospel at this point, because nobody’s been tried. Nobody’s been, you know, subpoenaed on this yet, and the consequences of this haven’t been put into place yet. The APA article that we’re referring to here, tends to believe from their legal department that the odds of this happening to therapists is going to be extremely small, that it’s a lot harder to prove things as far as being said in session, you brought up the question earlier, as far as like, you know, who’s going to know in some of these things. Don’t rely on who’s going to know, as a defense against something that we don’t know yet.

Katie Vernoy 43:19
Well you said that out of context, because we talked about that before we were recording. I think that the thing that I was saying earlier, is that unless the client says Well, I told my therapist, and they didn’t do these things. You know, it’s very hard to say like, oh, well, the therapist knew, and therefore they should be in trouble. But it was it was actually in context to the documentation. And also, another thing that we’re planning to talk about, which is duty to warn and reporting child abuse. And so I want to make sure that we’re kind of talking about this in a way that makes sense, but to me, in the practice of it, what I’m hearing is, do your best to kind of thread the needle and kind of keep doing what we’re doing. Like we’re not supposed to be drive, you know, like, generally, you know, I know that there are times when people might might step across this, but generally, we’re not driving clients to a clinic for a medical procedure as private practice clinicians. Now, I think about community mental health, they probably are going to have to have policies and decision making in that regard. But for most of us, I think we’re not going to be traditionally aiding and abetting and the conversations we have in sessions are hopefully not pushing someone towards a particular decision, as we talked about in the TFMR episode. Like this is someone’s decision and they need to be making it. You can’t be pushing it one way or the other. For mental health reasons, much less aiding and abetting reasons. But before we move into kind of what we document and these other potential responsibilities, is there anything within practice that we need to also pay attention to? Because I feel like we’re saying, just do good therapy and you won’t get into trouble for aiding and abetting a client. Like don’t tell someone to get an abortion, help them make a decision what they want to do, and process the feelings around it. Is that correct? Is there anything else?

Curt Widhalm 45:14
So, from the APA article, they say, for example, referring a patient to a specific clinic for an abortion or helping them make an appointment may create a somewhat stronger argument that you assisted them – shouldn’t provide a patient with transportation or financial assistance, we’ve covered that, okay.

Katie Vernoy 45:32
Yes

Curt Widhalm 45:33
The APA article goes on to say that stepping outside of your normal professional role with patients may create issues with your malpractice coverage, which generally covers you from claims arising and acting as the therapist in this role. So really, what we’re talking about is, how risky is it to talk with patients about the mental health implications? And like you’re pointing out…

Katie Vernoy 45:56
Not so much?

Curt Widhalm 45:57
Not really, like if you’re talking about the mental health issues, like this is one area where all right, most clients have heard of this little company called Google that can have better lawyers than any of us as individual practitioners, that you’re not going to, you know, give those, you know, strong things, even if it is strongly something that you hold on to, we’re not gonna give those strong referrals of like, go to this place for these things.

Katie Vernoy 46:34
Yeah, they do. They do really good abortions over there, you should go over there. So as long as you don’t, you know, kind of point them at a specific clinic or, you know, do something that’s going to be very specific, you allow them, you maybe give them some high level resources, but you allow them to do the footwork, you’re probably fine.

Curt Widhalm 46:55
Yeah

Katie Vernoy 46:55
Speaking of that APA article, though, I want to, there’s a couple of points I want to address in there, because I think you briefly said have a policy on how you discuss things. And I think that goes into documentation. But the APA article also says, Don’t let clients know what your beliefs are about the Roe v. Wade being overturned, and I strongly disagree on that. I think that clients need to know where we stand, or they won’t bring it up to us. And there’s also this whole thing where, right after Roe was overturned, people started saying, Don’t tell your therapist about bla bla bla bla, like, there was like, you know, huge amounts of things where it was like, Don’t tell your medical providers you’re pregnant, don’t tell your therapist, you’re pregnant, like don’t do anything that’s going to potentially show up in a medical record. And so to me, I want to, I want to talk a little bit about, first off, how do we let clients know we’re safe without pushing the conversation too far. And then the other thing is, how do we make sure that our documentation doesn’t bite our clients in the ass?

Curt Widhalm 47:55
I also disagree with the APAs stance on this. And I don’t think that there’s necessarily a strong consensus on this. APA is own ethics code says that if psychologists are having personal issues that lead to the interference of treatments, they should not provide the treatment. And I think if that is something that can be done, I don’t know, before somebody starts treatment, then it’s gonna save everybody a lot of time there. But other organizations like the California Association of Marriage and Family Therapist say that personal disclosure about strong issues should be something that if it’s something that’s greatly going to affect therapy, should be stated. So even the professional organizations don’t have necessarily clear ideas on this. But you also had an idea that comes from the professional associations themselves.

Katie Vernoy 48:58
Yeah, I think for me, if if I had if I was in a state that had trigger laws, or a lack of clarity. If I wasn’t in a safe haven law, and if I start practicing across state lines, I’ll do this. But I think having a part of your website that has kind of statements, different things that allow people to see what your your beliefs are, and especially because I think at this point, and correct me if I’m wrong here, but I think all of professional associations and mental health are many of them. At least the big ones, the big national ones, have made statements kind of denouncing the overturn of Roe v Wade or affirming a woman’s right to choose. So I think even taking and saying I am a marriage and family therapist or a counselor or social worker or psychologist and this is what my professional association says. I am in agreement with this. You know, when even a safe space thing, something like that, I don’t think you need to bring your personal opinions in into the room because there might be some clients where they have different opinions. And this goes back to Don’t tell your client what to do. But I think for clients who are very worried and don’t know where you stand and think, okay, here is someone that may report me, do you think we need to make it clear that we’re not going to if we’re not going to? And so I don’t agree that we don’t let anybody know. But I think I think as far as what goes into the room, I think it’s important that we, that’s a client by client basis, in my mind.

Curt Widhalm 50:35
To answer your second question, what are you talking about, you’re talking about treatment goals, you make decisions with your clients on whether or not this treatment goals in other words, you do good therapy.

Katie Vernoy 50:48
And you document the good therapy.

Curt Widhalm 50:50
Yes, and you measure progress, as you would measure any other emotional progress on this as far as reducing stress, feelings of anxiety, feelings of depression, and, you know, you are going to thread that needle that we recommend here, you’re going to stop short of it. The APA article says that, you know, having a policy of keeping things as far as medical decision making is a fair way to document, you know, it’s going to have to take some sleuthing by an attorney who would be coming after you after subpoenas and all that kind of stuff. But those all seem to be good practice based decisions.

Katie Vernoy 51:41
So just to clarify it and make sure that we’re on the same page: Generally, you document as you normally would. But when you’re getting into some of these more sensitive pieces of information, the idea is that you have a policy outside of like, that’s a broad sweeping policy for all clients for how you operate, which is how you talk about and document medical decision making, and or family life choices, what there was a lot of different little, I think they said, medical decision making and family issues or something were the, were the suggested little cliche phrases that they had an APA article. I’ve also said on that on the podcast before life choices, I mean, there’s there’s different things like that. But if you have a policy for how you operate. That protects you if there is some sort of a complaint against you. But within the record, you’re only writing medical decision making or medical decisions. It could be family issues, or something like that. But as long as you know what you’re writing about, it’s in line with your policy on how you document and treat around those issues. You’re kind of in the clear. And so the thing that you and I have gone back and forth with and there’s a little bit about this in the APA article is if you’re trying to protect yourself, going deeply into how you talk to a client about abortion, and what you did and didn’t do is an option. But that actually doesn’t protect your client. And it kind of protects you if your records or if someone’s coming after you like with the whole bounty laws. But it still makes it very clear that you’re talking about abortion anyway. And so I like this idea of being a little less specific in your notes, but having a policy that describes the types of things you’re talking about when you say medical decisions.

Curt Widhalm 53:36
Yes.

Katie Vernoy 53:37
Okay.

Curt Widhalm 53:39
To add one more topic to this whole discussion is duty to warn and child abuse reporting and child abuse reporting. And this is where so far the responses that we’ve seen have been kind of a, we don’t know, hands thrown up in the air for those of you who can’t see me on the podcast. But there’s a Medium article, an article from medium.com. It’s not a large article. It’s not a small article. It’s a medium.com article. And this was written by Monica Sudakov in July 2022. And Monica called some of the states where some of these trigger laws went into effect and specifically around duty to warn, and most states seems to largely ignore Monica, but a couple…

Katie Vernoy 54:41
That’s too bad. Poor Monica.

Curt Widhalm 54:44
A couple of states said that they had no information at that time. That included Oklahoma and Missouri. Texas, pointed her to a law library for some more detailed information and gave this following statement: “The language of the law itself is not specific as to abortion. It states that a professional may disclose confidential information only to medical, mental health or law enforcement personnel. If the professional determines that there’s a probability of imminent physical injury by the patient, to the patient or others, or there is a probability of immediate mental or emotional injury to the patient. It does not go into detail about what imminent physical injury would mean in terms of abortion. In cases like this, where the law is vague or unclear with regards to a specific topic usually needs to be interpreted by the courts. The Texas attorney general could also issue an opinion stating how the law should be interpreted and applied. Until then its precise meaning and application are unclear.” End quote. Monica says that this person did include that this Texas law is permissive, rather than mandatory, meaning that mental health professionals may report rather than shall or must report and that is a difference that you should know, depending on which jurisdictions that you’re practicing in,

Katie Vernoy 56:11
Okay, so I think the thing I’m taking away just for folks that haven’t put two and two together, the duty to warn is potentially if a fetus is determined to have personhood, and abortion is murder, then someone theoretically would need to report have a duty to warn. I don’t know, maybe the fetus and the police, but there’s a dutyto warn…

Curt Widhalm 56:39
I’m just, I’m just imagining a telehealth session of like, all right, I’m gonna need you to put your computer speakers down to your uterus, and I need to…

Katie Vernoy 56:50
…warn the fetus that yes. But the duty to warn issue I think is one that’s very interesting, because what you just described if I’m actually hearing this correctly, because Texas is permissive on duty to warn, and is also most likely to have this, you know, kind of abortion is murder situation, you’d actually still won’t have to report it because it’s permissive. Therapists aren’t required to protect other people in Texas, is that right?

Curt Widhalm 57:21
Well, the the takeaway of this is there’s no clarity. And until somebody provides clarity like an attorney general, who’s going to give specifics of like, this is how this is going to be enforced. And usually those are some sort of policy paper or official record, or until somebody tried in court for violating this that will then provide further clarification. You just don’t know. And, you know, this is where I also know of states like Louisiana that have pending legislation that will classify abortion as murder. So Texas isn’t even the most likely at this point, if that legislation does go into effect.

Katie Vernoy 58:06
So in the APA article, what they did say is that some states have redefined personhood to include an unborn child and have enacted fetal homicide laws. But apparently, the HHS Office of Civil Rights, OCR confirm that the HIPAA Privacy Rule would not permit disclosure of patient information related to abortion under mandatory child abuse or duty to warn reporting. So at a federal level, we’re not supposed to be reporting these things. It’s what you’re clarifying is that each state are going to have other things and they may, they may shift that, but right now, without specific state guidance, HIPAA says don’t report it. Not you don’t have to. It’s I think, it’s not permitted.

Curt Widhalm 58:56
I think I want to clarify what you’re saying or add a level of clarity to this. HIPAA is the default level, most states are going to have stronger requirements for this, including what mandated reports need to happen. HIPAA as a federal thing is this nationwide, we’re not setting the standard, as you must report this. All of these different states can put in Yes, you must report this. And that’s the point of knowing the jurisdictional laws of where you’re practicing is because don’t take away while HIPAA says I don’t have to. Therefore, I don’t have to know. HIPAA says you don’t have to now look at and where’s the client? Because that place might say that you have to.

Katie Vernoy 59:50
Well, I mean can state laws basically say HIPAA says I am not allowed. I am not permitted to disclose this information and the states can be like Nope you have to report that. You have to you have to disclose that information.

Curt Widhalm 1:00:04
It’s a possibility, because those subpoenas, those court orders can ask for anything.

Katie Vernoy 1:00:11
So with that it keeps going back to pay attention to what’s happening in your state. I think there’s potential for advocacy if there are laws that are coming down specific to, especially duty to report or child abuse laws. Because I think if those start getting connected to abortion, that’s very interesting, but almost certainly, I think it already has for gender affirming care where these may be actual reports that are required in some states, right?

Curt Widhalm 1:00:44
So a couple of places of advocacy to really consider on this, some are going to be at the state level, and some of these are going to be at the federal level. My prediction at this point is that the federal ones going to be a big lift, because we’re not going to recognize just how bad this is until it actually starts happening to providers. And, you know, just being the prognosticator of prognosticators is, it’s likely going to happen to medical providers first. And we need to be ready to jump in with some of the documentation stuff that also applies to mental health professionals. That since we get grouped into that by things like HHS, OCR who oversee HIPAA sort of things, that’s where I think the federal advocacy is going to be it’s not necessarily likely going to be led by the mental health professional organizations. But…

Katie Vernoy 1:01:42
Before you go on, so if we’re saying that it will likely happen to the medical providers, what will likely happen, like are they going to…

Curt Widhalm 1:01:51
Some of this information sharing sort of thing that is outside of client’s control needs to be clarified within I mean, this is rewriting HIPAA, and this is rewriting 21st Century Cures Act, to actually give patients more protections as far as some of their information, so that way, they have some rights to, you know, not having certain information shared, and especially when it comes to, you know, I can have my documents, but if I give my documents over to somebody else, then the patient, you know, it’s feathers blowing in the wind or leaves blowing in the wind, that there’s just no control over.

Katie Vernoy 1:02:31
So it’s rewriting HIPAA to have some more protection for this sensitive, potentially dangerous information, and having that happen at a federal level because of the interstate stuff. Okay, so that’s that piece. But when we’re talking about local advocacy, a lot of folks work with folks across state lines, but a lot of folks work just within within the state where they practice or where they’re licensed. For those states that have anti abortion trigger laws, or, or even laws around gender affirming care for youth and those types of things, or there is a threat of those things happening, it seems like local advocacy around either definitions or documentation or privacy, like all of those things would be really important to pay attention to or that our modern therapists that like to be involved here.

Curt Widhalm 1:03:24
And I would also encourage you to talk with lawmakers about writing and enacting some of these safe haven laws for providers. So that way, there’s some immunity to out of state subpoenas when it comes to some of these bounty hunting sorts of things. And Connecticut and California, I know are just two states that have these things in place. It’s fairly easy language to copy over to a bill that would apply to another state, it’s just a matter of getting the right lawmakers on board with this. But some of the patchwork protections that you would want in place to further provide you with protections and therefore less liability, if this was something to come up comes from those kinds of protections, and oftentimes are, you know, situations where it’s, quote, unquote, easier to get state laws passed than it is to get federal laws passed. So if you’re in a state where that’s seemingly a possibility, I would encourage you to start talking with your local lawmakers about that as well.

Katie Vernoy 1:04:36
And we’re back to advocacy to try to protect our clients.

Curt Widhalm 1:04:41
And really protect yourselves and the extension of the protection of yourselves does help with client care. So do good therapy, do good documentation. Make the world a better place, treat clients where they’re at and…

Katie Vernoy 1:04:54
And consult with your attorneys or your professional associations and make sure you understand what’s happening in any place that you are practicing.

Curt Widhalm 1:05:09
So, follow the directions to get continuing education if that’s something that you are doing. It helps us continue to do the wonderful things that we’re doing when you support us by getting your education from episodes like this. And you can always join our Patreon. That’s another way to support us and we give some cool stuff to patrons every so often. So be there for that. Follow us on our social media and become a member of our modern therapists Facebook group, continue some of these conversations. And we’ll include our references over at mtsgpodcast.com. And until next time, I’m Curt Widhalm, with Katie Vernoy.

Katie Vernoy 1:05:52
Thanks again to our sponsor, Thrizer.

Curt Widhalm 1:05:55
Thrizer is a new billing platform for therapists that was built on the belief that therapy should be accessible and clinician should earn what they are worth. Every time you bill a client through Thrizer an insurance claim is automatically generated and sent directly to the clients insurance. From there Thrizer provides concierge support to ensure clients get their reimbursement quickly and directly into their bank account. By eliminating reimbursement by cheque, confusion around benefits and obscurity with reimbursement status they allow your clients to focus on what actually matters rather than worrying about their money. It is very quick and easy to get set up and it works great with EHR systems.

Katie Vernoy 1:06:36
Their team is super helpful and responsive and the founder is actually a longtime therapy client who grew frustrated with his reimbursement times. Thrizer lets you become more accessible while remaining in complete control of your practice. 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 and use the code ‘moderntherapists’ if you want to test Thrizer completely risk free. You will get one month of no payment processing fees meaning you earn 100% of your cash rate during that time.

Curt Widhalm 1:07:11
Once again, sign up at bit.ly/moderntherapists and use the code ‘moderntherapists’ if you want to test Thrizer completely risk free.

Katie Vernoy 1:07:20
Just a quick reminder if you’d like one unit of continuing education for listening to this episode, go to moderntherapistscommunity.com, purchase this course and pass the post test. A CE certificate will appear in your profile once you’ve successfully completed the steps.

Curt Widhalm 1:07:35
Once again, that’s moderntherapistscommunity.com

Announcer 1:07:38
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