Top of Mind Checklist for Your Practice

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Top of Mind Checklist for Your Practice

KNOW YOUR STATE’S REGULATIONS
Your lawyer can provide you with a quick list and interpretation advice for your process rules of engagement and office management.

Be sure to promptly consult with the RRG Help Line for issues related to your professional liability risks as they arise. RRG policyholders receive unlimited Help Line consultation regarding malpractice risks.

Here is a brief overview of proactive rules, and the common issues that the NASW RRG encounters when adjudicating and managing professional liability policyholder claims:

FILE CREATION: Commencing the Therapy With a New Client

  • Disclose payment and business rules at the inception of the client relationship:
    • Get this all in writing. At minimum:
      • Visitation procedures
      • Office rules
      • Fee schedule
      • Payment requirements
      • All incidental expenses (such as document copying)
  • All disclosures must be in writing to eliminate false accusations and misunderstandings. Licensing Boards favor practitioners with supporting documentation and process rules in place. Make the client sign and date all forms which show evidence of notice. Retain all of these forms as a part of the client treatment file.
  • Before treatment, obtain a signed consent for treatment; and include all parents, guardians, and even participants as signers. Be sure to verify parental rights, and make reasonable efforts to determine whether the parent as a signatory, has the right to consent. Termination of the parent’s custody rights is a critical fact you need to document.
  • Also in writing, set forth the rules of confidentiality, including exceptions such as if the client is in imminent danger to others or self. Moreover, disclosure to law enforcement and medical personnel regarding threatening mental or emotional injury), must be in writing.
  • Potential rules according to your state’s Licensing Board rules, such as:
    • No credits or rebates from referrals
    • No bartering such as hair styling for social work counseling services
    • No solicitation for favors to further practitioner’s personal or family needs or interests; (such as work references from the client for the practitioner’s child to get a job)
    • Dual relationships and practitioner-client privilege established in writing:
      (See Tip of the Month September 2018 “The Battle of the Spouses”)
    • Family members;
    • Business associates and friends;
    • Teacher, students
  • A documented file with signed agreements with all parties as a precondition to therapy will aid significantly to assert that the privilege is on behalf of the couple in the event a patient or the third party files a board complaint.

BOUNDARIES and DUAL RELATIONSHIPS
Establish and maintain strict and clearly defined professional boundaries, including the “dual relationship” arising from client privilege.

  • Terminate the client when you determine that the client is not benefiting from your treatment. If the client requires continued treatment, you must document in writing your efforts for a referral to appropriate services and continued therapy.
  • Only provide those professional services that are within your professional competency. Do not risk practicing in other occupations.
  • All social services based on an assessment, evaluation, or diagnosis with treatment notes must include the diagnostic code and conformance with same.

ACCURATE RECORDS / RECORD KEEPING
Do not be sloppy or postpone writing your documentation. Be prompt, thorough, and accurate. Every incident, claim, and lawsuit starts with records and documentation evidence. Failure to comply means probable loss of your license.

  • Maintain your client records as though you are ready to appear in court, or in a state Licensing Board tribunal. Would you walk in the rain without an umbrella?
  • Maintain your client records with a third-party “critical eye” and include:
    • Dates of pertinent action and contact
    • Type of action, communication, or service rendered
    • Precise, detailed diagnostics and treatment codes;
    • Therapy progress notes;
    • Billing and transaction records;
    • All signed agreements, waivers, and all forms;
    • Maintain your records onsite ion a secured location, or offsite secured for the length of time required by state law. States vary on this, and also change for minors.
  • Disposal of records–some states allow destruction after five years from the date of the termination of therapy. Check with your state, and disposal must be performed to protect client confidentiality. We recommend that you shred the records yourself.
    • Do not hire a moving company to remove your records with a promise that it will dispose of your files. Dumpsters are not a solution.
  • If you are in independent practice, establish an estate plan and a Professional Will which defines the post-practice action. See Tip of the Month October 2016 and November 2016, Parts 1 and 2.

RELEASE OF CLIENT RECORDS

  • Strict compliance with your state statute regarding the release of records is critical.
  • Usually, states require that upon receipt of a written request for records, the practitioner must respond no later than 15 days, so do not sit on the request–be responsive promptly:
    • Make available for review or copy (if copies requested) during your regular business hours.
    • Inform the requesting party if the information requested does not exist, and document your response to include in the client file.
    • You may charge a reasonable fee, but you need a written client disclosure in the client file to evidence that signed the office administration related agreement.
    • You may be allowed to withhold records because of non-payment, but it is not worth it. It is better to release the documents and avoid a possible Licensing Board complaint later on.
    • If your client is in an emergency situation (such as a court hearing, or some other problematic situation like hospitalization), then you cannot withhold records because of non-payment of the fee.
  • You must document in writing any requested client file, or that the client was notified in writing, or by phone (document in writing in your notes as an internal memo), that the papers could be picked up by the due date.
  • Train your staff to:
    • Maintain a copy of an email, or create an internal memorandum documenting a phone call informing the client the records were ready for pick up; and,
    • Train your staff to document in their respective files that they followed this established office procedure.

While some Licensing Boards recommend sending the records certified mail/return receipt requested with a cover letter to provide absolute evidence they mailed, we recommend you do this all the time regardless of the state that you practice.

AUTHORIZED DISCLOSURE: (EXCEPTION TO CONFIDENTIALITY)

  • A Government agency, if the disclosure is required or authorized by law.
  • Medical or law enforcement in cases where imminent or physical or mental harm by the client to self or others is likely.
  • Persons possessing legal written consent of the client, such as parents of minors, guardians of minors, or persons deemed incompetent.
  • A deceased client’s legal representative.
  • If required by order of the Court
  • Other situations as specified by your state’s statute.

RIGHT TO DENY ACCESS TO RECORDS / TREATMENT FILE

  • The practitioner may deny access to any portion of a record if the practitioner believes that the release of that portion would be harmful to the patients’ physical, mental or emotional health.
  • Depending on the state, the state Licensing Board rules may require if records intentionally withheld, the practitioner provides the client with a written statement of what and why those records are being withheld and why. Maintain a copy of the written report in your file.
  • Delete all information about treatment to any other people who have not consented to the information release. Make a note in your file of what you deleted regarding your compliance with the information request.
  • Charging reasonable administrative fees can be done, but only following your written office policies/disclosures that the client has been given, signed, and acknowledged at the inception of treatment therapy.

Published October 2018

Resources and References