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The dreaded day has arrived and a subpoena has appeared in your office. There are many important steps on how to handle client confidentiality and what laws the clinician must follow when receiving a subpoena.
Because this situation activates anxiety for a lot of therapists, if you are unsure about next steps when you receive a subpoena, it is important that you please contact your state board and/or your association attorney for guidance on this.
However, the focus of this blog is to discuss the importance of including a clear policy and statement about court fees, documentation production, and letter writing, and how to include this in your informed consent forms.
Over the years colleagues and coaching clients have shared that they feel frustrated when clients request letters and other court services outside of their therapy sessions. However, much of this angst can be alleviated by knowing what the laws are in your state, and then writing out your clinical policy accordingly.
When I explore this common frustration in more depth with consulting clients, what I often hear is, "Mari, I don't have a policy in place that outlines what I charge clients for court and materials related fees. And on top of that, I don't have anything written in my clinical intake forms, so I simply do it for free. I want to change this!"
If you are nodding in agreement, I feel your pain! I also left myself swinging in the wind the first couple of years in my practice many moons ago. As a wise woman once stated, "When we know better, we do better." I hope this information will help you "do better" in protecting yourself, honoring and valuing your out of session court time and fees, and sharing this with your clients in writing so that they truly have informed consent.
First of all, you must be aware of what your state laws are with respect to "reasonable fees" regarding what you may charge for providing treatment records (if this is what you have been asked to do per the court or client). Many states have specific guidelines the therapist is required to follow for what their state deems as “reasonable” fees regarding administrative costs in providing clinical files.
For example, under California law you may charge only specific fees (please contact CAMFT or the BBS for more information if you are a clinician in California, or your state board if you are outside of California) to a client when responding to a subpoena or request for records.
However because each state may vary, the onus falls on you as the therapist to pick up the phone, or go on line and contact your state association and/or board to find out exactly what legal and ethical boundaries pertain to charging fees regarding treatment records. Again, please note that there are very strict regulations about what a therapist can charge a client who is requesting a copy of their clinical records.
The good news is that under the Health Insurance Portability and Accountability Act (HIPAA), "a covered entity can charge reasonable cost-based fees for providing medical records to patients (45 CFR 164.524(c))." What does this mean? It means that you will need to do the leg work to find out what those "reasonable fees" are in your state, and then list those out in your informed consent regarding charging fees for treatment records. Do not rely on a blog or website, no matter how well informed, to do the homework for you. Laws change, and the blog you may be reading might be outdated, or may not be relevant to your jurisdiction.
Another important point to keep in mind on the topic of treatment records is rather than copying records or files when subpoenaed, many therapists prefer to provide what is called a "Treatment Summary" vs. the clinical file. Again, this depends upon the legal parameters of the case, and without sounding like a broken record here, I cannot emphasize enough how wise it is to seek legal counsel should you receive a subpoena to ensure that you are covering all of your bases. My point in sharing about a treatment summary here is that a therapist is able to decide what feels like a reasonable fee for their practice when writing a treatment summary.
OK, so what about fees outside of a request for clinical records or a treatment summary, such as court fees and/or letter and materials preparation fees?
As most of us are aware, a therapist in the US must disclose their fee to a client before the onset of treatment. Additionally, it is strongly suggested, and in some states required, for a therapist to clearly outline in their clinical forms their client clinical session fees. Thus, the same wisdom applies for letter preparation and court appearances - you must disclose what your court fees are in your informed consent forms at the start of therapy.
By not taking the time to carefully write out what your policy and fee is regarding letter prep, court prep and court appearances, you put your self at risk legally and ethically should the client take issue with the charge, or you may end up working many hours for free if you have not outlined this in the informed consent forms at the onset of a therapy relationship.
The good news is that a therapist may use his or her own discretion on what to charge the client for letter preparation, court preparation, and time out of practice for court appearances and other related court tasks. That said, keep in mind that it may not always be wise to simply charge an hourly rate for xyz amount of time - Why? Because a client may challenge this and/or the court prep and case may require more time than you anticipated.
In order to avoid conflict, to ethically cover one's time, and to be fairly compensated, you may want to consider charging a flat rate to the client that takes the following into consideration:
A good rule to remember in any preparation process is that if you believe it will take you 30 minutes to write a letter or consult, it will likely take you twice that.
I understand that writing this policy into your informed consent is a time consuming process. However it is well worth the time to do so. Or if you prefer not to reinvent the wheel you can download my Complete Client Clinical Intake Forms Packet here which includes a section already written for you.
