The Duty to Record: Ethical, Legal, and Professional Considerations

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

New Hampshire 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.

The Division 31 and 42 EHR working group’s

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).

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

Electronic Health Records: A Primer (retrieved Nov. 29, 2012 at

http://www.apapracticecentral.org/update/2012/11-29/electronic-records.aspx.

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.

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.

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.

New Hampshire 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

New Hampshire law suggests the need 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 believe that a termination note will likely reduce exposure

to arguments about continued duty of care and the duty to warn a reasonably

identifiable victim if a patient makes a serious threat of physical violence, and

recommend that psychologists use this template, too.

Because the documents permit hovering over the underline fields with a cursor

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 (Thomson Reuters/ West

October 2011).

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.

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."

Whenever “Eurocentric therapeutic and interventions models”

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.

The EHR templates

permit drop down diagnoses using the ICD-10 functional diagnoses.

Statute or Rule

The New Hampshire Board of Mental Health Practice has incorporated by

reference the standards of the American Psychological Association’s Ethical Principles

of Psychologists and Code of Conduct (“APA Code of Ethics”).

In addition, a set

Please use the most recent version of WORD to access the full capabilities of the EHR templates.

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).

Id. at p. 45.

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

edition in 2008. See, http://www.apa.org/about/governance/council/08aug-

crminutes.aspx (last accessed August 1, 2012)).

N.H. ADMIN. R. ANN. MHP. § 501.02(a)(1); Copies of the APA Code of Ethics are available from

American Psychological Association Order Department, 750 First Street, NE, Washington, D.C.

20002-4242 and on the APA’s website at http://www.apa.org/ethics/code/principles.pdf (last

accessed Aug. 1, 2012) [hereinafter “APA CODE OF ETHICS”].

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

 

of regulatory rules of professional code of conduct have been adopted by the Board

to protect the public welfare.

Common Law

The Supreme Court of New Hampshire has narrowed the scope of the state’s

duty to warn statutes in two cases, Powell v. Catholic Med. Ctr.

and Carlisle v. Frisbie

Mem'l Hosp.

In Powell, the court held that the statutes did not “implicitly repeal the

common law duty to warn of a potentially violent client,”

and thus the defendant

medical center did still have a common law duty to warn the plaintiff, a phlebotomist,

of the client’s violent outbursts.

In Carlisle, an emergency room doctor called the

police and had a drunken, suicidal client taken to jail.

When the client sued for

professional negligence, the doctor asserted that New Hampshire’s duty-to-warn

statute barred the suit and required him to call the police.

The Court held that the

statute does not apply to threats of suicide.

Relevant annotations to: N.H. Code Admin. R. Ann. Mhp. § 501.01 (adopting the

APA Standards of Ethical Conduct)

 Psychologist's statement in evaluation report filed in patient's child visitation

proceedings, opining that both patient and child would grow from the

interaction resulting from increased visitation, did not constitute misconduct by

improperly expressing opinions that were not based upon information and

techniques sufficient to substantiate his findings or expressing an opinion of a

psychological characteristic of a non-patient; although psychologist did not

conduct evaluation of child, psychologist was not ordered to evaluate child, and

opinions were offered only with respect to patient and parent-child

relationships generally.

Relevant citing references to N.H. Rev. Stat Ann. § 330-A:27 (re: ethical duties of

psychologists)

 The board found that Dr. Smith did not breach the patient's confidentiality and

749 A.2d 301 (N.H. 2000).

888 A.2d 405 (N.H. 2005).

749 A.2d at 305.

888 A.2d at 411.

Id. at 416.

Id. at 417.

In re Kelly, 158 N.H. 484, 969 A.2d 443 (2009).

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

 

his delay in providing patient records did not rise to the level of unprofessional

conduct, but concluded that Dr. Smith's treatment of the complainant reflected

a pattern of “grossly incompetent and plainly unprofessional” conduct and his

continued certification posed a threat to the safety of potential patients within

the meaning of RSA 330-A:14, II(d).

Relevant citing references to N.H.

REV. STAT. ANN. § 330-A:32 (Privileged

Communications)

 Personal medical and psychiatric records were not relevant or essential to

plaintiffs' professional negligence action, despite plaintiff's allegation that

psychiatrist's mental condition prevented him from providing competent level

of care, and thus psychiatrist could not be compelled to disclose records, where

there were numerous non-privileged sources of information documenting the

defendant psychiatrist's disorder, his dates of treatment, and his treating

physicians.

 Children involved in custody dispute had right to assert therapist-client

privilege with regard to therapy records and notes that father sought for

inspection, on ground that he would find evidence of mother's alleged

interference with visitation; father did not have exclusive right to assert or

waive privilege on children's behalf, children's interests could be in conflict

with those of father, and there was serious risk that permitting father

unconditional access to therapy records would have chilling effect on therapist-

client relationship.

Contents of the record are mandated by law

New Hampshire Mental Health Bill of Rights has established informed consent

requirements “to protect the rights and enhance the well being of clients, by

informing them of key aspects of the clinical relationship… [Each client has] the

right:

(1) To be treated in a professional, respectful, competent and ethical manner

consistent with all applicable state laws and the following professional ethical

standards: a. for psychologists, the American Psychological Association…

Petition of Smith, 139 N.H. 299, 302, 652 A.2d 154, 157 (1994).

In re Haines (2002) 148 N.H. 380, 808 A.2d 72.

In re Berg (2005) 152 N.H. 658, 886 A.2d 980.

N.H. ADMIN. R. ANN. MHP. § 502.02(a).

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

 

(2) To receive full information about your treatment provider’s knowledge,

skills, experience and credentials.

…(5) To obtain information, as allowed by law, pertaining to the mental

health provider’s assessment, assessment procedures and mental health

diagnoses (RSA 330-A:2 VI).

(6) To participate meaningfully in the planning, implementation and

termination or referral of your treatment.

(7) To documented informed consent: to be informed of the risks and

benefits of the proposed treatment, the risks and benefits of alternative

treatments and the risks and benefits of no treatment. When obtaining

informed consent for treatment for which safety and effectiveness have not

been established, therapists will inform their clients of this and of the

voluntary nature of their participation. In addition, clients have the right to

be informed of their rights and responsibilities, and of the mental health

provider’s practice policies regarding confidentiality, office hours, fees,

missed appointments, billing policies, electronic communications, managed

care issues, record management, and other relevant matters except as

otherwise provided by law.

…(10) To know that your mental health provider is licensed by the State

of New Hampshire to provide mental health services: a. You have the right

to obtain information about mental health practice in New

Hampshire. You may contact the Board of Mental Health Practice for a list

names, addresses, phone numbers and websites of state and national

professional associations listed in MHP 502.02(a)(1)(a-e). b. You have the

right to discuss questions or concerns about the mental health services you

receive with your provider. c. You have the right to file a complaint with the

Board of Mental Health Practice.

The APA Code of Ethics also would be applied with the Health Insurance

Portability and Accountability Act (HIPAA):

APA CODE OF ETHICS, supra note 10; HIPAA, 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--

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

 

3.10 Informed Consent

(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.

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.)

A number of confidentiality standards under New Hampshire law

will require

disclosure about the limitations in protecting certain types of confidences, and the

psychologist would convey the following information in order to satisfy the informed

consent process. The patient has the right:

PRIVACY OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION (last accessed

Aug. 1, 2012).

See, N.H. REV. STAT. ANN. § 330-A:32 (Privileged Communications): The [confidences]…between

any person licensed …and such licensee's client are placed on the same basis as those provided by

law between attorney and client …unless such disclosure is required by a court order. [Also applies

to person working under the supervision of a psychologist]. This section shall not apply to hearings

conducted pursuant to RSA 135-C:27-54 or RSA 464-A. N.H. REV. STAT. ANN. § 330-A:32.

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

 

(3) To have the information you disclose to your mental health provider

kept confidential within the limits of state and federal

law. Communications between mental health providers and clients are

typically confidential, unless the law requires their disclosure. Mental health

providers will inform you of the legal exceptions to confidentiality, and

should such an exception arise, will share only such information as required

by law. Examples of such exceptions include but are not limited to:

a. abuse of a child;

b. abuse of an incapacitated adult;

c. Health Information Portability and Accountability Act (HIPAA)

regulation compliance;

d. certain rights you may have waived when contracting for third party

financial coverage;

e. orders of the court; and

f. significant threats to self, others or property.

In addition, to the informed consent disclosures called for by New Hampshire law, a

HIPAA notice of privacy practices

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.

APA Standards 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

(a) Psychologists include in written and oral reports and consultations, only

information germane to the purpose for which the communication is made.

6.06 Accuracy in Reports to Payors and Funding Sources

N.H. ADMIN. R. ANN. MHP. § 502.02(a).

45 CFR 164.502 (a)(1)(ii) & 45 CFR 164.506 (c); HIPAA, 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).

APA CODE OF ETHICS, supra note 10.

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 9

 

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

(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 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.)

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

(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…

Id.

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 10

 

9.10 Explaining Assessment Results

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…

Under New Hampshire law, psychologists “shall maintain clinical records that

include, at a minimum, legible date of service, type of service, outcome of service and

signature of service provider.”

APA Standard 6.06 implies that information about

the nature of the service provided…, the fees charged, the identity of the provider, findings, and

diagnosis should be maintained in the record when necessary for billing purposes. In

addition, the requirements of standards 9.01, 9.02, and 9.10 suggest that psychologists

in New Hampshire would use an intake and evaluation note, progress notes, and

termination note templates.

Maintenance and Security of Records

Under APA Code of Ethics Standard 4.01 - Maintaining Confidentiality,

“[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 supports the record keeping standards:

6. Record Keeping and Fees

6.01 Documentation of Professional …Maintenance of Records

Psychologists create, and to the extent the records are under their control,

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.)

Id .

N.H. ADMIN. R. ANN. MHP. § 502.01(l).

Id .

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 11

 

New Hampshire law permits patients: “To receive a copy of …[a] mental

health record within 30 days upon written request (except as otherwise provided by

law), by paying a nominal fee designed to defray the administrative costs of

reproducing the record.”

HIPAA also enables the patient to inspect and obtain

Protected Health Information (PHI) records, which includes the Psychotherapy

Notes created by the psychologist, as long as those records are maintained.

addition, patients have a right to amend any part of the record;

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).

HIPAA also permits sharing protected health information (PHI) with other

health care professionals who are engaged in the evaluation and treatment of the same

patient.

Finally, patients may obtain an accounting as to who has accessed the PHI and

the details about each disclosure.

6.02 Maintenance, Dissemination, and Disposal of Confidential Records

of Professional…

(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.)

(b) If confidential information concerning recipients of psychological services

is entered into databases or systems of records available to persons whose

N.H. ADMIN. R. ANN. MHP. § 502.02(a)(9).

45 CFR 164.524.

45 CFR 164.526 (a).

45 CFR 164.520; HIPAA, 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).

45 CFR 164.528.

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 12

 

access has not been consented to by the recipient, psychologists use coding or

other techniques to avoid the inclusion of personal identifiers.

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.)

HIPAA 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.

Concrete security standards are established for all

electronic healthcare information (45 CFR 160).

New Hampshire law provides various provisions governing the protection of

health information by “health care providers” (definition of “health care provider”

includes psychologist);

This includes specifics about charges for copying:

All medical information contained in the medical records in the possession of

any health care provider shall be deemed to be the property of the patient. The

patient shall be entitled to a copy of such records upon request. The charge for

the copying of a patient's medical records shall not exceed $15 for the first 30

pages or $.50 per page, whichever is greater…

Under an APA standard records cannot be withheld for nonpayment of fees:

6.03 Withholding Records for Nonpayment

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).

45 CFR 164.508.

N.H. REV. STAT. ANN. § 332-I:1, et. seq.

APA CODE OF ETHICS, supra note 10.

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 13

 

Retention of Records

New Hampshire requires that psychologists “maintain complete and accurate

clinical and business records pertaining to each patient seen for a minimum of 7 years

following the last activity on the account and for minors for a period of 7 years past

the age of majority.”

Violations of the specific duty

A number of possible sanctions may be pursued by the board for violations of

record keeping duties:

I. The board may, for just cause, undertake an investigation or disciplinary

proceedings:

(a) Upon its own initiative.

(b) Upon referral from any of the advisory committees.

person licensed under this chapter has committed misconduct under paragraph II and

which specifies the grounds for such charges.

II. Misconduct sufficient to support disciplinary proceedings under this section

shall include any allegations of:

(a) The practice of fraud or deceit in procuring or attempting to procure a license

to practice under this chapter.

(b) Conviction of a felony or any offense involving moral turpitude.

affecting the practice of the profession, including sexual misconduct as provided in

RSA 330-A:36.

(d) Unfitness or incompetency by reason of negligent habits or other causes, or

negligent or willful acts performed in a manner inconsistent with the health or safety

of persons under the care of the licensee.

…(g) Willful or repeated violation of the provisions of this chapter.

(h) Suspension or revocation of a license or registration, similar to one issued

under this chapter, in another jurisdiction and not reinstated.

(i) Any misconduct according to the law, rule, or ethical requirements applicable

N.H. ADMIN. R. ANN. MHP. § 502.01(k).

N.H. REV. STAT. ANN. § 330-A:27; See, N.H. REV. STAT. ANN. § 330-A:28 (Investigations and

Complaints). Establishes particular requirements about when the Board may access patient files as

part of an investigation against a licensee..

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

 

at the time of the alleged misconduct.

III. The board may take disciplinary action in any one or more of the

following ways:

(a) By reprimand.

(b) By suspension, limitation, or restriction of a license for a period of up to 5

years.

(d) By requiring the person to participate in a program of continuing education,

supervision, or treatment in the area or areas in which the person has been found

deficient.

(e) By assessing administrative fines in amounts established by the board which

shall not exceed $2,000 per offense, or, in the case of continuing offenses, $200 for

each day up to a total not exceeding $2,000.