Barbara A. Weiner

LAW OFFICES OF

BARBARA A. WEINER

600 Central Avenue

Suite 325

Highland Park, IL 60035

LEGAL & ETHICAL ISSUES IN

PROVIDING BEHAVIORAL HEALTH CARE*

Webinar 2

Table of Contents

I. Reporting Child Abuse1

II. Rights of Adolescents2

III. Divorce Situations3

IV. Record Keeping3

V. Ethical Issues5

VI. Billing issues7

Appendix A: Agreement Related to Child Custody Litigation9

I. CHILD ABUSE REPORTING (325 ILCS 5/4)

Child Abuse. Child abuse must be reported "When the professional has reasonable cause to believe that a child known to them in their professional or official capacity may be an abused or a neglected child. The report is made to the DCFS hotline. Before making a report, discuss it with your supervisor if you work for an agency. If you do not work for an agency discuss with an experienced colleague.

Abused Child: means a child whose parent or immediate family member or any person responsible for the child's welfare, or any individual residing in the same home as the child, or a paramour of the child's parent;

a. inflicts or causes to be inflicted, or allows to be inflicted upon such child, physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;

b. creates a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss of impairment of any bodily function;

c. commits or allows to be committed any sex offense against such child;

d. commits or allows to be committed an act or acts of torture upon such child; or

______

e. inflicts excessive corporal punishment.

Neglected child means any child whose parent or other person responsible for the child's welfare withholds or denies nourishment or medically indicated treatment including food or care denied solely on the basis of present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians or otherwise does not provide the proper or necessary support or medical or other remedial care recognized under state law as necessary for a child's well-being including adequate food, clothing and shelter.

89 IL Admin Code 300 Appendix B gives examples of when something is reportable.

Failure by a health professional to report suspected abuse or neglect could subject the professional to a Class A misdemeanor as well as loss of their professional license. A Class A misdemeanor can subject you to up to a year in jail.

II. RIGHTS OF ADOLESCENTS. An adolescent is someone between the ages of 12-18. Generally to provide treatment you need the consent of a parent-either parent will do, except if a divorce situation. In a divorce situation the custodial parent should sign the consent. If no parent is taking care of the child, document who the caregiver is (aunt, grandmother, brother, etc) and obtain their consent. Explain why the parent is not available (in jail, Mexico, etc.)

1. Hospitalization: A minor 16 or older may sign him/herself into the hospital for mental health care and often for other care.

2. Outpatient mental health treatment: Services may be provided on an outpatient basis without parental consent if minor is 12 or older but for no more than 5 sessions.

3. Substance Abuse Treatment. Minor 12 or older may consent to treatment for drug or narcotic abuse, alcoholism, or intoxication due to alcohol. This can be done without parental consent or notification if the minor objects.

4. Venereal Disease, Sexual Assault, HIV. Minor 12 or older may consent to testing, treatment and counseling without parental consent or parental notification unless the minor agrees.

5. Abortion. Until recently, adolescent girls in Illinois who became pregnant had the right to have as abortion without parental notification or consent. A recent Illinois Supreme Court decision requires anyone performing an abortion on a minor to notify an “adult family member (parent, grandparent, step-parent living in the minor’s home, or legal guardian) of the pregnant minor’s intention to terminate her pregnancy. This is notification and does not require the adult’s consent. The Act permits young women who do not wish to have an adult family member notified, to seek a judicial waiver of the notification requirement in an expedited and confidential proceeding in an Illinois Circuit Court. To accomplish this you can refer the girl to ilbypasscoordiationproject.org or she can call 877-442-9727 for basic information. There is also information on Facebook at

Illinois Bypass Coordination Project. Additionally, the ACLU has an excellent booklet that simply explains everything. These are free and they will provide them in bulk. To obtain just go to

6. Release of Records. An adolescent can prevent his/her parents from seeing mental health records. Parents are entitled to know current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any.

III. DIVORCE SITUATIONS. Under Illinois law, both parents are entitled to see a child's health, mental health, dental, and school records irrespective of who has custody. (750 ILCS 5/602.1(2)). (Teenager controls access to his mental health records).

1. Whenever there is a pending divorce or potential change in custody be very clear with the parents about the role of the therapist. Try to make sure both parents know what is going on. Enter into a written contract that the parents will not involve you/your Employer in the custody/visitation proceedings. If they do, you or your Employer will be compensated at least one week in advance for a minimum of 3 hours time at 150% of the therapist normal hourly rate for the 3 hours. See Appendix A.

2. When there is a divorce ask for a copy of the court order related to the parenting agreement/rights.

3. If the child is in sole legal custody of one parent (ask for the court order) then that parent should consent to treatment. If the child is visiting (for a longer period of time, such as summer vacation) with the other parent, then the non-custodial parent can consent to treatment.

4. If there is joint parenting agreement, then either parent may consent to treatment. Ideally, both parents should be told the child is in treatment.

5. Before believing a parent that the other parent has no rights, request a copy of the court order stating that.

6. If it is the step-parent who is really the caretaker, document it and accept that fact.

IV. RECORDKEEPING/DOCUMENTATION

A. Importance of Records

1. It shows that services were provided. This allows for reimbursement.

2. It records the facts of care. From a litigation perspective: “If it is not in writing it did not occur.”

3. Critical to document:

a. Client not showing up for appointments.

b. Client not following treatment recommendations.

c. Medications prescribed.

d. Actions taken in case of suicide threat or threat of harm to others.

e. Important telephone calls from client.

B. Documentation.You must document unusual incidents and what actions you took.

A. Threats of suicide.

1. Does the person have a specific plan?

2. Does the client have a weapon?

3. Did you move for civil commitment? If not, why not?

4. Is there a treatment contract?

5. What action have you taken and why?

B. Threats of harming others.

1. What is the threat and who is it against?

2. Do you view it as a meaningful threat or just the person letting off steam?

3. Does the client have the ability to carry out their plan? For example is the person they are angry at nearby?

4. Do they have a weapon?

5. What action have you taken and why?

C. Client not following treatment plan.

1. Did you document what they are not following?

2. If they are not taking their medications have you asked why and considered side effects?

3. If they are not keeping appointments have you done a wellness check? Have you considered terminating care?

4. What action have you taken and why?

C. When Documenting Do Not:

1. Disparage staff or clients.

2. Include extraneous or sensitive data.

3. Make non-contemporaneous alterations.

4. Believe that no one will ever read the record.

5. Write illegibly or with improper abbreviations.

6. Fail to document decision-making and significant events.

7. Fail to document client's consent to treatment or release of records.

8 Discarding records prematurely.

9. Fail to document telephone calls, medication refills.

10. Fail to obtain and review past records.

V. ETHICAL ISSUES

A. Conflicts of Interest

1. It is important not to get involved in situations where there may be a conflict or an appearance of a conflict that would interfere with the exercise of professional discretion and impartial judgment. In some circumstances this may require not accepting a client or terminating a client.

2. Conflicts may exist if you are treating one family member and now the second family member would like treatment, such as a husband and wife who are not going to be in couple’s therapy. There could also be a conflict with providing care to someone who has a close relationship to someone else you are treating, such as a former spouse or lover of the person.

3. If care is provided to more than one family member, the therapist needs to be very clear with all parties what the role of the therapist is. Of particular concern is involvement in child custody/visitation proceedings. If you are the therapist for the child make it clear that you will be advocating for the child, and not serve as the witness for the parent.

4. Therapists should not provide treatment to their own family members or their in-laws. Care should also not be provided to people the therapist or their spouse have a business or personal relationship with.

5. If the therapist is sexually attracted to a client, the therapy should end. A therapist should never have a sexual relationship with a client or someone who has been a client during the previous two years. They also should not have a sexual relationship with the parent/guardian of a child client.

6. There should never be a business relationship between the therapist and a client. Therapists should never approach clients to buy something from them or their family members. (be it Girl Scout cookies or accounting services).

7. Therapists should never seek to have clients share the therapist’s religious or political beliefs.

8. Therapists should not develop a social relationship with a client and client's should never have access to your Facebook page.

9. Ethical conflicts arise when the therapist is aware that a client is lying or violating the law. It is not the job of the therapist to serve as an investigator for the police. However, a therapist should not further assist a client in their dishonest behavior. For example, a therapist should not provide verification to Social Security or Public Aid or a reference which you know is dishonest. The therapist should never become part of the client’s inappropriate/illegal behavior.

B. Informed Consent

1. It is important to have a clear understanding with the client of what services are being provided and what the limits are on what can be accomplished.

2. In providing services a written consent should be obtained. This should clearly explain what the goals of treatment are and the services to be provided to accomplish those goals.

3. There also should be a Fee Agreement that the client signs related to billing policies. It should cover what the cost is and what actions will be taken if the client does not keep up with payments. If third party coverage is envisioned, the Fee Agreement should be clear about the fact that the client is responsible for the fees if their insurance does not cover care.

4. Clients who do not have decision-making capacity cannot provide an informed consent. For adults, consent must be provided by the client’s guardian or power of attorney for health care. For children the consent must be provided by the parent or guardian. If the child is a DCFS ward, it is DCFS that must provide consent.

C. Clinical Supervision

1. If requested to provide supervision or consultation to other mental health professionals, you should only do so within the areas of your knowledge and competence. If you are unsure or it is an area beyond your expertise advise the person you are supervising and suggest someone else to consult with.

2. In serving as a supervisor, set clear and appropriate boundaries. Never allow yourself to be in a situation where you have a dual or multiple relationship with the person being supervised in which there may be a risk of the supervisee being exploited or harmed.

3. There should never be a sexual or financial relationship between a supervisor and supervisee.

4. In evaluating a supervisee’s performance, it should always be done in a fair and respectful manner that conveys clearly the person’s strengths and areas where they may need additional training or knowledge. If you do not tell the supervisee what he/she is doing wrong how will they learn to do it right? The most important thing you do as a supervisor is to provide honest feedback and show the supervisee how to improve.

5. Make sure you keep notes documenting the supervision sessions. This is critical if the person is seeking licensure.

D. Unprofessional Conduct

Every Licensing Board has a set of standards that if violated is considered unprofessional conduct and can result in loss of licensure. This includes:

1. Practicing beyond one's competency.

2. Making misrepresentations or misleading claims as to your professional qualifications.

3. Breach of client confidentially. "Failing to inform clients at the onset of the counseling relationship of the limits of confidentiality. These limitations, include mandating reporting and when the client poses a clear and immediate danger to oneself or others.

4. Fee Splitting. Directly or indirectly giving to or receiving from any person, firm, or corporation a fee, commission, rebate or other form of compensation for any professional services not actually rendered. It is not unethical for social workers to utilize referral services for which a fee is charged, nor to participate in contractual arrangements under which they agree to discount fees. Fee splitting is when you pay a fee to someone who sends you business but does not provide any services. For example, an attorney refers you a case and you send the attorney $100 for the referral.

5. Submitting false claims for services.

6. An act of sexual misconduct, sexual abuse or sexual relations with one's client, patient, student supervisee or with an ex-client within 24 months after termination of treatment.

7. Entering into a treatment relationship in which professional judgment may be compromised by prior association with or knowledge of a client.

8. Failing to disclose a conflict of interest, dual relationships between the therapist and clients, and /or obligations associated with service that might affect the client's decision to enter into or continue the relationship.

9. Permitting an intern or trainee under the therapist's supervision to perform, or to pretend to be competent to perform, professional services beyond the trainee's or intern's level of training. Disclosure of the intern's status and the name of the supervisor are required.

Always notify your Licensure Board when you change your address.

VII. BILLING ISSUES

1. Have a fee agreement with your clients setting forth your hourly rate. Make sure it states: “I acknowledge that I am responsible for any amount not covered by my insurance.” Also have it provide: “In the event the therapist is forced to engage in legal proceedings to collect any outstanding balance, I agree that in addition to the fees owed, I will also owe the collection costs including legal fees and court costs.”

2. When billing insurance bill for the amount you normally charge. You cannot inflate the amount, because you know that the insurance will only pay part of your rate.

3. Collect the money owed each session. Do not allow a balance to build up. If someone is not paying you, terminate care unless they are deteriorating to the point where you think hospitalization is necessary.

4. If you are not going to charge a client for more than their insurance pays, have documentation of why. For example, “client is unemployed”, “has no money”, “facing major expenses”. If everyone you care for falls into this category than you are probably billing the insurance companies a fraudulent rate.

5. Do not send clients for collection. This is the surest way to have them angry and file a complaint with IDFPR.

AGREEMENT RELATED TO CHILD CUSTODY/VISITATION LITIGATION

I, name of parent/guardian, have brought my child, name of child/children, to (name of therapist or Agency) to address his/her mental health issues. I understand that the therapist is to treat the child/children and will not become involved in any custody or visitation dispute. I recognize that for my child’s mental health, it is important not to involve the therapist in court proceedings.

I agree that as a condition of treatment for my child/children, I will not seek to have the therapist testify in court, give a deposition, or an affidavit. I understand that the therapist will only become involved when the therapist determines it is necessary to protect the child.

I agree to advise my attorney that the treating therapist will not become involved in any custody/visitation litigation. I agree that should I seek the therapist’s involvement in such litigation I will be responsible for the therapist’s attorneys fees in consulting an attorney to avoid involvement, and if ordered by the court to participate in the litigation, I agree to pay one week in advance of any court hearing for a minimum of at least 3 hours of the therapist’s time at the rate of $______per hour. I also agree to compensate the therapist for any time he/she spends beyond the 3 hours, including time related to preparation and travel at the same hourly rate.

I understand that if I seek to involve the therapist, he/she may immediately discontinue care with my child/children.

MotherFather

______

Date:______Date:______