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Protecting Client Records

Avoiding Malpractice: Tips for Social Workers to Manage Risk

As a Practicing Social Worker Are You at Risk to Protect Client Records?
Are You Fully Covered by Your Insurance Plan for Protecting Client Records
and for Third Parties Handling Your Client Records?
YES, and Most Probably, NO.

As always, the NASW supports its social worker members in many ways. NASW Assurance Services augments this support with practical solutions and insurance protection. Here is a tip to consider that can help you reduce a lot of grief and expense.

Common practice methods require the social worker to first engage the client in early meetings to promote a collaborative relationship. This is where malpractice liability exposure, cyber liability data breach exposure, and general liability exposure begin the social worker’s total risk exposure.

The social worker must buy insurance coverage to protect against risks. Examples of risk elements include proper practice techniques, documentation creation and protection, client records management and retention, and even accidents in the workplace.

Many people are unaware that there is a distinct insurance risk difference between a social worker causing a client records breach, and a third party causing a client records breach. HIPAA holds the social worker responsible for both events and penalizes the social worker for both events.

Most professional liability insurance policies deliberately exclude covering damages and legal defense of the social worker for records information breaches when the records are under the direct control of the social worker. Most professional liability insurance policies do not cover records information breaches committed by third parties such as movers, storage facilities, and online records repositories for example.

All of these risks are covered by the NASW Assurance Services RRG Professional Liability Policy and by its Cyber Liability Personal Data Breach Response Policy. It is extremely rare that any professional liability insurance policy covers the social worker for legal defense and damages arising from misdirected emails and faxes containing client information, but the NASW Assurance Services insurance plans cover these information records breaches.

NASW Assurance Services offers insurance solutions for risks covered by its Professional Liability, Cyber Liability, and General Liability insurance policies. These insurance protection solutions are NASW ASI proprietary, designed especially for social workers, have comprehensive benefits, have low premiums, and in NASW Assurance Services’ opinion, provide the highest value in the marketplace.

In the Assessment phase of treatment, information is gathered by the social worker that guides a plan of action to help the client. This is a particularly important core function from an insurance perspective. When information is documented, these records become client records subject to protection under HIPAA legislation, that holds the social worker liable for breach by the social worker and breach by any third parties who handle the records information.

These client records become subject to potential subpoenas and related social worker depositions. What the social worker says in writing and verbally can be used against the social worker in licensing board inquiries and in court. Even how the client records are stored on premises, or with a third party, or even moved by a third party is relevant. Risks increase exponentially, and it is in the social worker’s best interest to buy the NASW endorsed liability insurance protection products through NASW Assurance Services.

This is a very serious matter. For example, in 2013, Congress added third party breach liability to HIPAA, specifically HIPAA HITECH 45 CFR part 160 which holds social workers liable for a third-party data breach. Violation of this law has civil penalties up to $25,000 for an accidental breach by the social worker’s records management company provider, or even a mover hired to relocate the social worker’s office or files. Criminal penalties range up to 10 years in jail and $250,000 in fines.

There is no doubt that social work is a noble profession with implicit values of service, social justice, human dignity, integrity, and clinical competence. Despite all of the sincere devotion provided by social workers,…

…they need to check and thoroughly read their Professional Liability Policy for exclusions in coverage for information records breach, and check their Cyber Liability Personal Data Breach Response Policy for third party information records breach.

The NASW endorsed liability insurance plans protect you for all of these types of records information breaches. These plans are offered by NASW Assurance Services and designed for social workers. They have the oversight of the social worker Boards of Directors looking out for the interests of the social workers, and unlike other liability insurance plans, the NASW Assurance Services plans are not owned by corporations who must attain Wall Street earnings numbers each quarter.

Do you have a question you would like to see addressed in the Tip of the Month, or wish we would address a previous Tip in more detail? We welcome your ideas! Please email suggestions to asi@naswasi.org (include “Tip Idea” in the email title). A new topic will be profiled each month.

Small Groups, LLC’s and legal entities do not qualify for Cyber Liability Insurance. For General Liability rates for Small Groups and Agencies, please contact Lonnie Ropp, asi@naswasi.org.

Published September 2014

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