A Matter of Law: Patient Record Keeping, Part 1

by Legal and Regulatory Affairs Staff

Keeping good patient records is a matter of sound practice for psychologists. Among their many uses, appropriate records can help ensure continuity of care and protect practitioners in the event of legal proceedings. Knowing legal and regulatory requirements and related factors that affect record keeping is crucial to your practice.

This is the first of two articles addressing questions about record keeping that practitioners often raise with staff in the APA Practice Directorate.

The first step psychologists should take to answer this question is to find out if there are any state laws governing record keeping requirements. Helpful sources of information may include your state licensing board and knowledgeable attorneys. If you belong to your state psychological association, you might also check to see what pertinent information the association provides to its members.

Even if relevant state law does not exist, sources of guidance from APA include the Ethical Principles of Psychologists and Code of Conduct, and the APA Record Keeping Guidelines. The Record Keeping Guidelines set out certain basic elements that would probably appear in most records — such as a record of informed consent, treatment dates, diagnosis, type of treatment, and significant decision making. These guidelines, which provide much useful information for practitioners, are being updated.

You may also find it helpful to consult with other psychologists and the current literature about what constitutes generally accepted standards of record keeping.

Several factors have a bearing on the content of your records, including:

• The nature of your practice. The content of records may vary depending on your type of practice. A psychologist keeping records for forensic purposes, for example, may keep different kinds of information in the record than someone doing psychoanalytic work. The level of detail necessary and the types of observations recorded in the record may vary between these two types of practice. 
• The purpose(s) of the record. Examples of purposes may include establishing continuity of care, preparing forensic testimony, or supporting claims for insurance reimbursement. Insurance companies may have specific record-keeping requirements that a psychologist should know about before starting treatment. Even so, be aware that insurance requirements are separate from and do not supplant state law and ethical requirements for record keeping. 
• The possibility of third party access. It is also important when keeping records to keep in mind the possibility of third party access. For example, the records could be subpoenaed in a legal dispute. Again, the context in which the record is created may be relevant. Records of therapy for a spouse involved in a custody dispute, for instance, may be kept with that circumstance in mind. Before including information in the record, a psychologist should seriously consider if the information is not critical to the record and may be prejudicial to the client if it were subpoenaed. 
• Institutional requirements. Many larger health care institutions such as hospitals have specific record-keeping policies that affiliated health professionals must comply with.

The amount of time to keep records depends on state law, type of practice and insurance requirements. State law typically requires that records be kept for seven years after they are created. However, this period does not start for minors’ records until the minor reaches the age of majority. Further, you may be involved in practice activities such as forensics where the litigation involved may necessitate your keeping records beyond the time period required by state law.

There are a number of scenarios where a psychologist discontinues practice — including moving, retiring, becoming disabled, or dying. Regardless of the circumstances, a psychologist who discontinues practice remains responsible for patient records for as long as they must be kept. Practitioners also must take appropriate steps to make clients aware that the practice is being discontinued.

If a psychologist moves out of state and does not want to take records along, he or she needs to see that the records are safely stored locally and that they could be properly accessed if a client needs the record.

Don’t overlook the need to make provisions for how client records should be handled in case of your disability or death. The arrangement that seems to provide for the easiest transition is having an agreement with another psychologist that if you die or become disabled, that psychologist will assume responsibility for the care of your records. It is important that the person be a psychologist or someone of equal training so that decisions about matters such as client access to records will be made by a competent health professional.

The arrangement you make could even become part of your initial informed consent form so that clients become aware of and agree to another psychologist’s being in charge of the records should you die or become disabled.

This article is the fifth in a series, “A matter of law,” about the practical effect of various laws and regulations on practicing psychologists.

PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.