The Effects of Federal Laws and Regulations on the Practice of the Profession of a Psychologist - Coursework Example

The effects of Federal Laws and Regulations on the practice of the profession of a Psychologist I. Introduction There are a number of laws in the United States that have huge effects of the practice of a psychologist. In some cases, the restrictions brought about by these federal laws and regulations could hamper the exercise of the profession while the others are greatly beneficial to the practice. In order to see how some of these laws and regulations do affect the practice of a psychologist, it is best to take a closer look into some of these laws. For purposes of discussion in this paper, I would like to take a close look into the areas of Health Insurance Portability and Accountability and Family Educational Rights and Privacy Act. II. Health Insurance Portability and Accountability Act (HIPAA) The information generated during a psychological treatment has always been considered as confidential. However, the enactment of the HIPAA made this information even more private and the protection thereof became one of the priorities of practitioners. Technically, the enactment of the HIPAA is intended to help the psychologists keep maintain privacy of information by providing guidelines in record keeping and maintaining confidentiality of information generated in a patient-psychologist relationship. According to Harris (2003), it is expected “that at least some changes in confidentiality protection and patient rights instituted by the Privacy Rule will become the new standard of care and thus apply to all psychologists”[Harris, E. 2003, p.12 also cited in Zur, 2003]. The changes that the HIPAA brings about in the areas of records keeping will hopefully, upgrade the services and the practice of psychologists around the country. Technically, the upgrading of services on the part of the psychologists could mean better patient-psychologist relationship. The HIPAA is also intended to prepare the psychologist of the development in technology by setting up some standards on how a practitioner may be able to protect medical records and billings that are transmitted through the internet. The provisions on the transmission of information through the internet were formulated in anticipation of the time when psychologists will rely heavily on the use of technology to deliver information. Note that the leak of information whether intentional or unintentional on the part of the psychologist can be a ground for litigation that may affect the practice of the psychologist. By providing guidelines on record keeping and transmission of information, the HIPAA hopes to prevent some unfounded suits against the psychologist. On the hand, the HIPAA offers a huge advantage on the part of the patient. The enactment of this law means that the patient will now have more protection against malpractices on the part of the psychologist. Note that the HIPAA provides that the psychologist has duty to inform the patient of his or her rights and how to use these rights to his or her advantage. This means that the patient will now have more informed choices when it comes to their treatment as well as know when and how the information regarding health are being used. Since the patient under this law are allowed to examine their records and request for corrections in the event where they find some discrepancies in the records, the patient gains more power and control over the course of their treatment. The HIPAA extends a tighter security on the medical records of the patient, thus, there is lesser possibility of a leak of information that may be damaging on the part of the patient. On the other hand, the HIPPA is very much favorable to the patient as well as the psychologists because this can hasten the processing of medical reimbursement and claims. Note that under this law, the use of electronic means of communication is encouraged. Since the electronic processing can be a lot faster than the traditional ways of doing things, there is a big possibility that the delivery of services will now be faster and more efficient. Although the HIPAA has some advantages, it also has a number of disadvantages especially on the part of the psychologist. In many sense, the enactment of this law made the practice of the profession of the psychologist a bit more difficult than it should have been. First, the psychologists will now have the added burden of informing their patients of their rights of privacy and how to exercise the same, adopt a clear system in their offices on how to protect the sanctity of the information generated during treatment, adopt physical measures to keep all records safe, and train their employees to make them more qualified to handle information that might come their way in the course of their work [American Psychological Association (March 2002)]. Furthermore, in big clinics and hospitals, there is need to designate a person who shall be responsible for the implementation of privacy procedures and make sure that everything are run in accordance with the regulations of the State [American Psychological Association (March 2002)]. This elaborate system of keeping records and ensuring the privacy of information could take a toll on the psychologist. In big hospitals, compliance with the requirements set forth under the HIPAA could mean additional expenses while for those psychologists that are practicing on their own, this could mean additional burden which they can ill afford [Hartman-Stein, P. (2002)]. Although the law so provide that a psychologist who is practicing alone can avail of the “scalable compliance” scheme where he or she does not necessarily set up an elaborate office filing or billing system, this can still be a big burden on their part [Hartman-Stein, P. (2002)]. According to the “scalable compliance” rule, a person or organization that is covered by the HIPAA is deemed compliant if it takes reasonable steps to meet the requirements according to the size of the office and the types of activities performed therein [American Psychological Association (March 2002)]. The scalable compliance rule lessen the burden of compliance on the part of smaller organizations and those who are practicing on their own but that doesn’t mean that these people or organizations will not comply with the rules and regulations under the HIPAA. The coverage of the HIPPA includes communications done online including billings. If the practitioner is doing his or her billing online, he or she must comply with all the requirements set forth under the HIPAA. Under the HIPPA, the mode of electronic transmission includes the use of the internet, the intranets, leased lines, dial up connections and private networks [American Psychological Association (March 2002)]. The transmission of data using a disk, a CD or a magnetic tape is also covered under this provision [American Psychological Association (March 2002)]. According to the HIPPA, in order for psychologists to be declared in compliance with the requirements of the law, they need to present a proof stating that they have a set of office rules and regulations in handling these types of information and these set of rules and regulations are in accordance with privacy rules. The psychologists must also be able to present some proof that they have instituted these policies in the office and have a way of tracking down the implementation thereof. Unfortunately, the strict compliance to the requirements of the law could prevent the psychologist from performing his or her task more efficiently. Note that since the law requires strict compliance, the psychologist will now divide his or her time and attention between helping his or her client and making sure that his or her office is in compliance with the privacy rule mandated by the HIPPA. The psychologist cannot just simply ignore the provisions of the HIPPA because any violations thereof could result to some grave repercussions. Note that according the HIPPA, for civil violations of the standards set under the law, the therapists could be made to pay for penalties of up to $100 per violation, up to $25,000 per year for each requirement or prohibition violated [American Psychological Association (March 2002)]. This is rather a very stiff punishment and psychologists could very well feel threatened by this. To matters worst, criminal penalties also apply on certain situations. For instance, the act of knowingly obtaining protected health information can be meted with criminal sanctions. Criminal penalties for violations of the HIPPA can range up to $50,000 and one year in prison for certain offenses. For violations involving “false pretenses”, the psychologist could face a penalty of up to $100,000 and imprisonment of up to five years [American Psychological Association (March 2002)]. On the other hand, a violation committed with intent to sell or use protected health information generated during the treatment process for commercial purposes, personal gain or to inflict some malicious on the person can result to a fine of up to $250,000 and up to 10 years in prison [American Psychological Association (March 2002)]. If we take a look at the stiff penalties attached to this law, everyone who is subjected to it will surely find it difficult not to comply even if it means that the therapist will have to spend a lot of extra time and money to become compliant. According to Zur, the HIPAA is a complex law which posses a “deadline and teeth”[ Zur, O. (2003a)]. The HIPAA can be triggered when a psychologist transmits Protected Health Information (PHI) in connection with nay of the following transactions : health care claims, health care payment and remittance advice, coordination of benefits, health care claim status, enrollment or disenrollment in a health plan, eligibility for a health plan, health plan premium payments, referral certification and authorization, first report of injury, health claims attachments and when an entity acting on behalf of the psychologist transmits health information in electronic form, such a billing service.[ American Psychological Association (March 2002)] Third parties such as billing companies are mostly like involved in the practice of a psychologist, the psychologist now has the added burden on making sure that the third party that he or she engaged to do his or her billing does not reveal any information that it may learn of the treatment process of the patient. According to the HIPAA, the psychologist may transmit PHI to a “business associate”[ American Psychological Association (March 2002)] but he or she must obtain a written assurance or contract that the “business associate” will appropriately safeguard whatever information will be transmitted or revealed in connection with the transaction. This situation can become a bit sticky when the business associate will not be able to comply with all the requirements set forth by law. Note that the business associate is not covered under the rules of the HIPAA so it is now incumbent upon the psychologists to ensure that their business associates comply with their agreement on privacy of information. III. Family Educational Rights and Privacy Act (FERPA) The Family Educational Rights and Privacy Act (FERPA) of 1974 were enacted to provide protection of the rights to students in connection with educational records. Under the FERPA, the students are given the rights to access to the educational records being kept by the school, the right of family members and third persons to demand for the disclosure of the educational records upon the consent of the student involved and the right of the student to file action against the school for the unauthorized disclosure of school records which are considered as a violation of the FERPA [Office of Family Policy Compliance, Family Education Rights and Privacy Act   (FERPA)]. According to the FERPA, the records that are in the hands of the school or the education institution should only be used as a memory aid and should not be made accessible to any other person except to that person who temporarily acted as a substitute of the records keeper of the school [Office of Family Policy Compliance, Family Education Rights and Privacy Act   (FERPA)]. The privacy of the records is advantageous on the part of the students because this could safeguard their interest in the future. Note that students’ records may contain some very sensitive information regarding the student that it could case a lot of damage on the reputation of the students if such information is revealed to the public. Furthermore, since students who have reached the age of 18 are now considered as old enough to handle or take charge of their educational affairs including those instances which may involve the school psychologist, they have the right to control the flow of information involving their education. Such right to control gives them the power to withhold information regarding their educational records from third persons including their parents. On the other hand, parents of minors or those students who have not yet reached the age of 18 may still access the school records of their children under the FERPA even without the written or expressed consent of their children. The rules and regulations under the FERPA are beneficial to the psychologists as well as the students. On the part of the psychologist, the information generated during a therapy session or any other psychological treatment that he or she gave to a student is considered confidential. Since the records of treatments undergone by the student may be made part of the school records of that particular person, the fact that the FERPA safeguards the records of the students is indeed very favorable. Note that the according to the FERPA, any note made by the psychologist in connection with the treatment of the students or during test protocols, when shared with others except for his or her substitute at work shall become part of school records “regardless of where these records are kept.”[ Jacob-Timm, S. (1999)]. Since these notes are considered as school records, these can not be subpoenaed and can be used in court in accordance with law [Jacob-Timm, S. (1999)]. The enactment of the HIPAA tightened the rules and regulations regarding confidentiality of patient records and the psychologist may face severe consequences in the event where there are incidents of information leak. Since the FERPA provides an airtight seal on the records of the students, the psychologist can now feel more confident that he or she will not be unwittingly drawn into malpractice litigation simply because the school revealed the records of a student to third persons. According to FERPA, the identity of the students who are seeking counseling or psychological treatments should not be revealed and everything that pertains to the treatment process should be kept confidential. The confidentiality of the records of the students that are undergoing psychological treatment or counseling and those who are undergoing disciplinary actions is even kept secret even to the parents of the students involved [Gehring, D. (1995)]. The reason behind the strict protection of information is that such secrecy will foster more confidence on the part of the students to openly share information to the psychologist. Although the FERPA is designed to safeguard the rights of the students as well as help the psychologist uphold the confidentiality of information generated through a patient-psychologist relationship in an educational institution setting, there are also a number of disadvantages involved in the enactment of the FERPA. According to the FERPA, there are only two ways wherein the records of the students can be accessed, first, through the express consent of the students and second when the school or the educational institution can prove that there is a “legitimate educational need” or the need to know on the part of the school or the institution [Bonfiglio and Levine, 2007]. According the Gehring, the legitimate education need is defined as something that is important to “fulfill the individual’s professional responsibility.”[ Gehring, D. (1997)]. This definition of what “legitimate educational need” raised a lot of controversy and brings us into the impact of the FERPA on the practice of a psychologist. Since the records of student counseling is generally given higher degree of confidentiality as compared to other school records, often times, the hands of the school psychologists are tied. They are bound by the provisions of the law not to reveal any information regarding the students in their care without the consent of the students themselves or the parents of the students where the students are still minors. To illustrate our point, let us take a look at the situation involved in the conduct of test protocols in schools. Note that the Department of Education’s Office of Special Education Programs (OSEP) has defined test protocols as education records. According to OSEP, since the results of these test protocols are considered as school records, it will now be open to the scrutiny of the parents who would like to access the educational records of their children [Reschly, D.J. & Bersoff, D. N. (1999)]. Consequently, the parents will be allowed to inspect and review questions asked in the test as well as scrutinize the answers or responses of the students [Reschly, D.J. & Bersoff, D. N. (1999)]. Unfortunately, if cannot be avoided that there may be many cases where the parents become overly zealous in their efforts of scrutinizing the questions in the test protocol that they tend to interfere with the work of the psychologist. It is not really unthinkable that the parents will try to influence the work of the psychologist or influence the actions and reactions of their children to such test. Given this situation where the access of the parents to the records of their children may give them the chance to interfere or influence the test results, the question now is that how can the psychologist maintain the integrity of the test as well as uphold the rights of the parents to inspect the educational records of their children? Some authors are of the opinion that the legal rights of the parents is of more value as compared to the security of test results [Jacob-Timm, S. (1999)]. Beeman is of the opinion that the review of the child’s performance by his or her parents is a good way to facilitate communication between parents and their children [Beeman, Y. (2000, Spring)]. Unfortunately, many psychologists are not in agreement with the idea that parents should be given access to information generated through the test protocol. In some cases, school psychologists are found to be guilty of destroying the test results in the effort to protect the sanctity of this information [Reschly, D.J. & Bersoff, D. N. (1999)]. The dilemma of whether or not to give access to the test results stems from the fact that the psychologist is ethically bound to protect the integrity of information against misuse by the people who are not in the right position to interpret such information [Beeman, Y. (2000, Spring)]. How can the psychologist avoid the dilemma of divulging information generated through the patient-psychologist relation to the parents of the student? By working closely with the parents and explaining to the parents that conflict between the duty of the psychologist to protect the integrity of the information and the right of the parents to review the records of their children, the situations where parents will interfere or try to influence the work of the psychologist may be minimized. It is therefore important on the part of the psychologist to communicate to the parents in a satisfactory manner the results of his or her findings without really resorting to the opening of the records of the patient [Jacob-Timm, S. (1999)]. IV. Conclusion The enactment of the HIPAA and FERPA had affected the practice of the psychologist on different levels. Although there are some advantages that are brought about by the enactment of these laws such as the upgrading of the means and delivery of services to clients, there are also a number of disadvantages brought about by these laws. Conflict between law and ethics often happens in the practice of the profession of the psychologist. Such conflict could lead to the diminished ability of the psychologist to deliver good services. Although the original intents of the FERPA and the HIPAA is to upgrade the practice of the psychologist, it cannot be avoided that conflict of interest may arise. In both cases, future case law will probably further define the lines of compliance. References: American Psychological Association (March 2002) Getting Ready for HIPAA a primer for psychologist APA (2003). HIPAA For Psychologist. Online course. http://www.apait.org/apait/resources/hipaa/hipaa_booklet.pdf accessed 26 April 2007 Beeman, Y. (2000, Spring). Issues regarding security of tests and protocols. NHASP Protocol, p. 8 (New Hampshire Association of School Psychologists). Bonfiglio and Levine. Confidentiality and the Educational Need to Know http://www.myacpa.org/comm/ccaps/ferpa.html Zur, Ofer. Eleven reasons to become compliant Eleven simple ways to achieve compliance Professional Practice http://www.division42.org/MembersArea/IPfiles/IPFall03/prof_practice/HIPAA.html accessed 26 April 2007 Freeny, M. (2003). HIPAA – Big, hungry but manageable. NASW Florida Chapter Newsletter, Jan/Feb. Gehring, D. (1995). Disciplinary records remain confidential under FERPA. NASPA Forum, March, 15, 6. Gehring, D. (1997). Campus regulations. NASPA Forum, February, 18, 8 Harris, E. A. (2003). Legal and Ethics Risks and Risk Management in Professional Psychological Practices. Workshop reader, March, LA. Hartman-Stein, P. (2002). HIPAA may become most disruptive, impactful force in psychotherapy practice. The National Psychologist, Nov./Dec. HIPAA privacy Q&A http://www.wvdhhr.org/bms/iHIPAA/bms_hipaa_privacyFAQ.asp accessed 26 April 2007 HIPAA Q&A From APA http://www.ohpsych.org/Psychology%20News/HIPAAQAfromAPA.pdf accessed 26 April 2007 Jacob-Timm, S. (1999). Ethically challenging situations encountered by school psychologists. Psychology in the Schools, 36, 205-217. Jensen, D. G. (2003). HIPAA: Psychotherapy Notes and You. The Therapist, Jan./Feb. Office of Family Policy Compliance, Family Education Rights and Privacy Act (FERPA). http://www.ed.gov/print/policy/gen/guid/fpco/ferpa/index.html accessed 26 April 2007 Reschly, D.J. & Bersoff, D. N. (1999). Law and school psychology. In C.R. Reynolds & T.B. Zur, O. (2003a). Is This HIPAA Friendly: All you need to know about HIPAAs, Possums, Ostriches and Eagles in three pages or less. The Independent Practitioner, 23/2, pp 79-82. Zur, O. (2003b). HIPAA Compliance Kit. Sonoma: O. Zur, Ph.D. Read More