The Portable Ethicist for Mental Health Professionals A Complete Guide to Responsible Practice Second Edition With HIPAA Update Thomas L. Hartsell Jr., JD and Barton E. Bernstein, JD, LMSW JOHN WILEY &SONS,INC. The Portable Ethicist for Mental Health Professionals Other Books by the Authors The Portable Guide to Testifying in Court for Mental Health Professionals: An A–Z Guide to Being an Effective Witness (2005), John Wiley & Sons, Inc. The Portable Lawyer for Mental Health Professionals: An A–Z Guide to Protecting Your Clients, Your Practice, and Yourself, second edition (2004), John Wiley & Sons, Inc. The Portable Ethicist for Mental Health Professionals A Complete Guide to Responsible Practice Second Edition With HIPAA Update Thomas L. Hartsell Jr., JD and Barton E. Bernstein, JD, LMSW JOHN WILEY &SONS,INC. This book is printed on acid-free paper. * 1 Copyright # 2008 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, elec- tronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008, or online at http://www.wiley.com/go/permissions. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. For general information on our other products and services or for technical support, please contact our Customer Care Depart- ment within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, visit our web site at www.wiley.com. Library of Congress Cataloging-in-Publication Data: Hartsell, Thomas L. (Thomas Lee), 1955- The portable ethicist for mental health professionals: a complete guide to responsible practice: with HIPAA update/by Thomas L. Hartsell Jr., Barton E. Bernstein.—2nd ed. p. ; cm. Bernstein’s name appears first on the earlier ed. Includes bibliographical references and index. ISBN 978-0-470-14030-7 (pbk. : alk. paper) 1. Mental health personnel–Professional ethics. 2. Psychiatric ethics. 3. United States. Health Insurance Portability and Accountability Act of 1996. I. Bernstein, Barton E. II. Title. [DNLM: 1. United States. Health Insurance Portability and Accountability Act of 1996. 2. Psychiatry–ethics. 3. Codes of Ethics. 4. Confidentiality. 5. Professional-Patient Relations–ethics. WM 62 H335p 2008] RC455. 2.E8B476 2008 174 0 .2–dc22 2007045712 Printed in the United States of America 10987654321 To all of the mental health practitioners who struggle to ethically serve their clients. Contents Preface xi Acknowledgments xix Introduction xxiii PART I CLIENT ISSUES 1. Alternative Treatment Methods 3 2. Boundary Violations 21 3. Confidentiality 33 4. Dangerous Clients 55 5. Discrimination 69 6. False and Misleading Statements 81 7. Informed Consent 97 8. Interviewing 113 9. Prohibited Clients 123 10. Risky Clients 137 11. Repressed and Recovered Memory 151 12. Sexual Misconduct 163 13. Terminating Therapy 177 _______________________________________________________________________ vii PART II ETHICS CODES AND LICENSING 14. Areas of Ethical Complaints 197 15. Ethics Codes as Evidence 207 16. Licensing Board Procedures 217 17. Office of Civil Rights 231 18. Centers for Medicare and Medicaid Services 243 19. Reporting Statutes and Obligations 253 PART III PRACTICE CONSIDERATIONS 20. Billing 267 21. Establishing a Practice 279 22. Closing or Interrupting a Practice 299 23. Kickbacks, Bartering, Fees, and Gifts 317 24. Malpractice Insurance 331 25. Record Keeping 347 PART IV PROFESSIONAL ISSUES 26. Drug and Alcohol Use, Impairment 369 27. Duty to Warn 381 28. Interprofessional Issues 395 29. Professional Vulnerability 403 30. Supervision 413 viii Contents [...]... state tort reform measures have made it more difficult for consumers in some states to bring, maintain, and prevail in malpractice suits against health- care professionals Filing a complaint against a mental health professional costs the client nothing but a little time in filling out and forwarding the complaint State rules and HIPAA require mental health professionals to advise their clients on how and... for each of the national and state professional organizations are also available from the issuing organization and on the Internet If the answer to a particular ethical question is not answered in the text, you may find the answer in the codes themselves A call to the professional association, licensing board, or an Internet search may also produce the answer Should a reading of the code reveal a conflict... mental health professional has to choose from The world is not a kinder and gentler place for mental health professionals Professional associations, licensing boards, the federal government, certifying authorities, media, and clients are quick to judge negatively and punish the conduct of mental health professionals There are more technical rules in place for mental health professionals to be aware of and... would be a rare circumstance whereby an attorney would have to report a therapist for an ethical mistake or violation We have always made ourselves available for consultation when a mental health Preface professional has a question We would prefer to spend a few minutes helping someone avoid a problem than many hours and many dollars to assist that person when trouble comes calling The time to call a knowledgeable... Preface that results in sanctioning even if the client has not been harmed or has even benefited from the therapy There has never been a more precarious time to practice one of the mental health disciplines It is our goal to present ethical information and advice on how mental health professionals can practice with less risk of harm from clients We want the book to be both a guide and a practice aid for. .. Portable Ethicist for Mental Health Professionals: A Complete Guide to Responsible Practice tackles dozens of ethical questions in a straightforward manner It uses the ethical codes of mental health xxxiii xxxiv Introduction professional associations and federal HIPAA law, where applicable, to respond to these questions and provides guidelines for avoiding ethically questionable behavior You can review the. .. in the field of mental health; one was a PhD psychologist employed by a fledgling managed care company and the other was a clergyman who, at about age 40, decided to earn a counseling degree and change professions from the ministry to counseling Armed with his advanced degree, he was pursuing a career as a counselor in a group practice When we assembled to prepare for the presentation, both mental health. .. merchant, and Talya Bernstein Galaganov, lawyer and mother of my grandchildren, Sima Galaganov and Haya Galaganov, and her husband, Misha Galaganov, professor of music, and to my stepdaughter, Amy Huck, with good wishes as she embarks on her life’s accomplishments To my sisters, Rona Mae Solberg and Dr Berna Gae Haberman, and her husband, Wolf (Bill) Haberman, and in loving memory of my brother-in law,... wording or ambiguous interpretation, the organizations involved usually have staff available to answer questions In addition, all malpractice carriers, ever anxious to avoid litigation, and knowing that ethical canons can be introduced into evidence to indicate minimum standards of conduct, will be happy to be of assistance They often will make their risk management professionals available for consultation... both the national organization and the state licensing board Practice Implications An awareness of your personal moral code in relation to knowledge of the professional standards and regulations of your state and national associations and licensing boards dictates that in the area of mental health ethics, common sense, gut reactions, individual morality training, and personal preference—even actions . The Portable Ethicist for Mental Health Professionals A Complete Guide to Responsible Practice Second Edition With HIPAA Update Thomas L. Hartsell. Sons, Inc. The Portable Ethicist for Mental Health Professionals A Complete Guide to Responsible Practice Second Edition With HIPAA Update Thomas L. Hartsell