(3 hours)


Confidentiality is generally considered a cornerstone of the doctor-client relationship. (Alban, A., 2007) Many counselors assume that mental health treatment is most likely to be successful when the client has a trusting relationship with the clinician. (US Department of Health and Human Services, 1999, citing Sharkin, B., 1995) People tend to reveal much of their private selves in the course of receiving counseling. Trust that clinicians and institutions will preserve client privacy is necessary to maintain the value of mental health services. Laws that protect confidentiality attempt to preserve this trust, so that people will be more likely to benefit from mental health services such as counseling. With trust in confidentiality, people are more likely to pursue counseling, are more likely to afford the level of care that they need by utilizing their insurance and other benefits, and are more likely to divulge information that is needed to ensure effective treatment. In addition to the needs of individuals, confidentiality laws serve the interests of family members, employers and society in general, by helping to reduce the impact of mental and emotional disorders and personal problems.


These laws protect as private information both the fact that an individual has sought mental health treatment, and the disclosures that are made during treatment. (Ibid) Confidentiality laws can also serve to protect the client or other family members and even the counselor from the danger that may result when a violent individual learns that someone they have intimidated is seeking support, or when that individual learns of the identity of the counselor. These laws help to protect individuals from problems such as social stigma, and workplace and housing discrimination.


Legislatures and the justice system have given considerable attention to issues concerning the role of privacy in health care over the last three decades. While the legal right to privacy has been at issue most frequently in procreation and end of life decisions, it is well established as being of great importance in mental health services. (Ibid)


The right to privacy itself, in its most abstract form, has its genesis in the fourth amendment of the Constitution. (Ibid)

What is to be Confidential

The confidentiality of counseling clients includes the question of whether they are participating in mental health services. Counselors must refrain from confirming or denying that any individual is or has been a client, so long as there is no legal exception to confidentiality. All details of the verbal and written communications in the course of counseling, assessment, testing, reporting and other communications are also protected as private information.

The Place of Confidentiality in the Therapeutic Relationship

Confidentiality is not absolute: In certain types of circumstances, LPC’s have discretion, or even a legal duty, to disclose confidential patient information. However, casual disclosures appear to be rare. According to Pope, et al., "[f]ew psychologists blatantly breach the confidentiality of their clients." (Pope, K. S. & Vasquez, J. T., 1998) More often, they note, client confidentiality is breached "informally" or "unintentionally." (Ibid) Citing the results of one study, they report: "About three[-]fourths discuss clients – without names – with friends. Only 8.1% discuss clients – with names – with friends." (Ibid) However, they also add: "Surprisingly, over half (61.9%) have unintentionally disclosed confidential data." (Ibid)

As an Aspect of Informed Consent

Clinicians routinely provide information regarding confidentiality as an aspect of informed consent. The issues of confidentiality equate to risks and rewards that the client should knowingly choose when entering therapy. There are risks that confidentiality may be breached due to legal responsibilities placed upon the therapist, or breached illegally through an error or an intentional act. Legal and procedural measures to preserve confidentiality afford protection, but not certainty.

As Privilege

Privilege: Not Exactly Confidentiality

Confidentiality of medical information is a right that citizens hold. This right imposes upon therapists a duty to preserve the privacy of their clients. When another duty competes with the counselor’s duty to preserve client privacy, the counselor must assert that one duty is a more important obligation than the other.

For example, if an attorney subpoenas a clinical record, the counselor usually must assert that his or her duty to preserve client privacy is more important than the duty to provide the court with confidential client information. This is the assertion of privilege; that is, asserting that one duty has a privilege over another. By asserting privilege, the counselor is fulfilling the responsibility of “holding” the clients right to privacy.

Limits on Confidentiality

Under § 681.41(e)(4), LPC’s are required to notify patients, in writing and before or during the initial consultation, of any applicable limits on patient confidentiality. Texas places few limits on patient confidentiality. However, circumstances do exist that may require an LPC to breach client confidentiality, at least to a limited degree. Informed consent requires that clients be made aware of such possibilities.

Limits on confidentiality include, but are not necessarily limited to, four major contexts: billing and insurance issues; situations involving a client who is minor or an incapacitated adult; situations where risk of harm exists; and when an LPC discovers that a client is already under the care of another provider. Every client should receive advance notice, in writing, of these and any other possible limits on confidentiality. (Limits, or exceptions, to confidentiality are discussed in some detail in the Exceptions to Confidentiality section below. An in-depth exploration of confidentiality and disclosure issues is the subject of a separate course.)

With regard to billing and insurance issues, an LPC should advise the client of the types of information that must be released to ensure payment, and which entities (or types of entities) entitled to receive such information. The LPC should also ask the client whether she is under the care of another counseling provider; and advise the client that, if so, the LPC must inform the other provider.

With a client who is a minor or an incapacitated adult, the LPC should inform the client of the types of situations that may require her to breach confidentiality, such as obtaining consent from a parent or guardian for certain types of treatment. To the extent possible, the LPC should present such information in a way that the client can understand.

With regard to risk of harm, an LPC should advise clients that confidentiality may be breached in a variety of contexts: where the LPC has reason to believe that a child is being abused (whether the client is the child or the suspected abuser); where the LPC has reason to believe that the client poses a risk to others; or where the LPC has reason to believe that the client poses a risk to herself (e.g., risk of suicide).

However, Texas statutes provide very few express limits on confidentiality, and thus, very little legal protection for LPC’s who breach it. LPC’s should review § 611 of the Texas Health and Safety Code carefully before breaching client confidentiality to ensure that such a breach falls within protected limits.


Insurance companies, including managed care companies, have the responsibility to protect privacy. This includes having systems and policies in place to accomplish such protection.

Clients are not always aware of what information will be sent to insurers, particularly where managed care policies include reviewing clinical information in order to determine whether to authorize additional treatment or a change in level of care. Informed consent dictates that counselors provide enough information about their relationship with the insurer that the client can be make informed choices regarding their confidentiality.

For example, a client may not want certain diagnoses to become preexisting conditions affecting their insurability after a change in employment (and insurance policies) that could take place in the future. In some cases, clients may prefer to pay privately or limit the focus of therapy based on this information. In any case, the counselor should attempt to limit the information provided to only that which is necessary to conduct business with the insurance company, and only in so far as the release of information authorized by the client permits. (ACPA, 2003)

Confidentiality of patient mental health records is governed by Title 7 of the Texas Health and Safety Code, Sec. 611, and is the subject of a separate course. However, certain provisions of § 681.41 relate to confidentiality and will affect how LPC’s handle specific types of situations. And under § 681.41(x), an LPC has an affirmative duty to "comply with the requirements of Texas Health and Safety Code, Chapter 611, concerning the release of mental health records."

First, under § 681.41(e)(4), LPC’s are required to inform new patients in writing, before or at the time of the initial consultation, of the limits of patient confidentiality. In Texas, there are few such limits, and for the most part, limiting confidentiality occurs at the therapist's discretion. As a practical matter, however, LPC’s may find that complying with standards of professional practice and ensuring client welfare may require them to exercise that discretion and breach patient confidentiality under certain circumstances. In addition, to the extent that such exceptions are not mandatory, LPC’s who choose to breach client confidentiality under such circumstances, however urgent, may expose themselves to risk of civil liability, professional discipline, and possibly even criminal penalties.

Second, other statutes affect how LPC’s should apply the requirements of § 681.41(e)(4). These other statutes are reviewed briefly in the ensuing subsections; they are discussed in depth in a separate course.

For the most part, such information is likely to concern billing issues, and § 681.41(r)(2) indirectly provides for such disclosure where the client is a minor.

Subsection (r)(2) is intended primarily to ensure that clients receive full explanations of their treatment and the charges for that treatment. If a client makes a written request for such an explanation, the LPC must provide, "in plain language, a written explanation of the types of treatment and charges for counseling treatment intervention previously made on a bill or statement for the client." However, the LPC is required to provide such information in two other situations: 1) where the client is a minor, and a parent or guardian makes such a request; or 2) where the client is an incapacitated adult and such a request is made by the client's guardian. "This requirement applies even if the charges are to be paid by a third party."


The Health Information Portability and Accountability Act (HIPAA) is the first federal privacy standards act intended to protect client’s medical records and other health information in the possession of health care providers, including health plans. Congress enacted HIPAA, also known as the Kennedy-Kassebaum Act, in 1996. Developed by the Department of Health and Human Services (HHS), it took effect in 2003. Also known as the Privacy Rule, HIPAA provides clients with access to their medical records and gives them more control over their personal health information. The Act is intended to establish a nation-wide floor of privacy protections, meaning that states may maintain or establish more stringent laws without being invalidated by HIPAA. (US Department of Health and Human Services, 2000) HIPAA also protects employees who change jobs and protects the rights of people with health insurance. It includes significant privacy, confidentiality, reporting and compliance requirements. (Dauner, C. D., 2001)

HIPAA is also intended to make health insurance coverage more available. It does this through means such as improving the transmission of electronic records and providing improved privacy of health and medical information.

HIPPA rules apply to counselors who transmit records electronically in carrying out financial transactions or administrative activity such as claims submission. This includes Internet or email transmission, and the use of electronic media such as CD's. Faxing and electronic data storage are not included. (Alameda County Psychological Association, 2003). The individuals and organizations to which HIPPA applies are referred to as “covered entities.” HHS provides a great deal of information, including answers to common questions at (Ibid) It is better known as a means of regulating corporations such as health plans, hospitals and pharmacies that previously were not as accountable for protecting client confidentiality. However, counselors in solo private practice stand to benefit by adopting HIPAA compliance, particularly regarding informed consent and maintaining separate psychotherapy notes.



HIPAA is respectful of state law when it comes to confidentiality and disclosure of health information, referred to in the law as private health information (PHI). As you would expect, it requires written authorization for all disclosures of PHI, but it exempts "treatment, payment or operations" (TPO), such as billing and training.

The law distinguishes between "use" and "disclosure" of PHI. Use refers to transfer of information within an organization that is a covered entity. Disclosure refers to release of information outside of the organization or the counselor's practice.

TPO Uses of PHI

Counselors do not need a separate authorization for "uses" of PHI (as you’ll recall, that is personal health information) as mentioned above. HIPAA lists the following as TPO (again, that is treatment, payment and operations) "uses.”

Use by the originator of the psychotherapy notes for treatment

Use or disclosure by counselors for their own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling

Use or disclosure by counselors to defend themselves in legal actions or other proceedings brought by their clients. (Alameda County Psychological Association, 2003)

Privacy Notice

Counselors are to provide their clients with a notice that describes the counselor's privacy practices by the first appointment. The counselor must make a good-faith effort to get written acknowledgement from clients indicating that they have received this notice, and the notice must be posted in the counselor's office.

Release of Information Form

For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, the client must sign a release form. HIPAA has specific criteria for such a form.

Psychotherapy Notes

In 2003, the United States Department of Health and Human Services (HHS) also issued new guidelines that apply specifically to psychiatrists. Because of HIPAA, psychiatrists now must maintain two sets of records for each patient: 1) regular medical records; and 2) separate psychotherapy notes. Under HHS regulations, notes detailing a conversation between psychiatrist and patient during a consultation are classified as "psychotherapy notes."

According to lawyer Dan Willick, the purpose of the new regulations is to protect patient confidentiality in an era of managed care:

If psychiatrists start keeping medical records and psychotherapy notes together, there is a heightened chance that the notes from therapy sessions will be disclosed to a third party. Health plans and insurers cannot require the disclosure of psychotherapy notes as a condition of enrollment or treatment, but they can require disclosure of a patient’s medical records. (Kupersanin, E., (2001)

One of the protections for the mental health information of clients afforded by HIPAA lies in HIPAA’s designation and use of psychotherapy notes. HIPAA protects psychotherapy notes from the blanket release that allows medical information to be used for administrative purposes. It requires that the notes be protected from view by anyone other than the counselor and anyone to whom the records are specifically authorized for release. Its protections for psychotherapy notes include the provision that they be separate from the client’s main record. This helps ensure, for example, that the psychotherapy notes will not be accessed by a clerk out of curiosity. (US Department of Health and Human Services, 2000) (US Department of Health and Human Services, 2003, part 4)

HIPPA defines psychotherapy notes, and specifies what must be placed in the main record and never put in the psychotherapy notes. It also requires that the notes be maintained separately from the main record. (Ibid, parts 1 and 7) The definition of psychotherapy notes as pertaining to the “contents of conversation” is a very limited definition because it is part of a design to both maintain a viable primary record, as well as prevent or limit distribution of the most private information.

Disclosing Confidential Information

Authorized Release of Information

The client may consent to a release of confidential information for many reasons, the chief of these being the provision of information to another care provider, such as a psychiatrist or new counselor. Other reasons include providing information that verifies compliance with the requirements of an outside entity such as the client’s probation officer or employer.

Under HIPAA, an organization that provides clinical services may allow staff access to client information in order to maintain records, supervise clinicians, do case management and other tasks. Similarly, an individual counselor may reveal information to a person or organization that provides administrative services such as billing. In all cases, the information must be limited to what is necessary to provide the service. The people who have access to that information must treat it as confidential medical information.

The counselor must consider the welfare of the client, even when the client has authorized or demanded a disclosure. If the counselor is convinced that the disclosure is not in the best interest of the client, then the counselor may need to refuse to cooperate with the disclosure and attempt to dissuade the client from making such a disclosure. Consider the example of a client who thinks that providing information to a physically abusive spouse will help the spouse develop more empathy. In such a case, the counselor would have to consider whether the disclosure might actually worsen the danger.

Compulsory Mental Health Treatment

Additional confidentiality issues arise when there is compulsory mental health treatment. This occurs when people are compelled by organizations such as courts or employers to seek mental health assessment and treatment for various reasons. A court may compel an individual who has been convicted for driving under the influence of alcohol or drugs to undergo a substance abuse and mental health assessment. The court may require a period of time during which the client must provide urine screens in order to test for evidence of current substance abuse. A person failing to comply with the court orders can suffer legal consequences that may include imprisonment.

Private entities such as employers may compel people as well. For example, many employers have policies that allow them to suspend the disciplinary process. This can prevent the employee from being fired so long as the employee cooperates with a mandatory referral process. This process can include a referral to the company employee assistance program (EAP), and can require compliance with the recommendations of that program. Ultimately, the employee must improve his or her functioning within a period of time that does not constitute a hardship for the employer. (Yourell, R. A., 2007)

The counselor must deal with contractual obligations with the organization as well as abide by the ethics and laws of confidentiality pertaining to the client. Generally, in a compulsory referral, the client will release the counselor to provide certain limited communications with the referring organization. Usually, the client can terminate that release at any time. This normally means that the referring organization will consider the client to be “out of compliance” with the mandatory referral, and impose whatever disciplinary process is slated to occur in the absence of such compliance.

Counselors can learn more about compulsory referrals through the confidentiality course, or by gaining EAP (employee assistance professional) certification.

The Subpoena

The counselor must respond to a subpoena, because subpoenas have the force of law. Attorneys are officers of the court, and require information to fulfill their duty in cases. Subpoenas are generally issued during the discovery phase in preparing for trial. Attorneys generally cast a wide net in seeking information; not knowing in advance what information will be of use. (Alban, A., 2007)

There are several ways for the counselor to uphold his or her responsibility to protect client privacy. It is very important to plan the response to a subpoena with the help of an attorney, because there are too many legal variables. You may need to attempt to have the subpoena quashed (usually on a technical ground), modified, or even attempt to negotiate with the party issuing the subpoena. (Ibid)

Other Requests for Information or Confidentiality

Counselors may experience requests for information about clients or people believed to be a client from outside individuals or organizations. These may include family members, attorneys, journalists, law enforcement officers, neighbors or other parties.

A straightforward way for the counselor to assert privilege is to state, “I can neither confirm nor deny that the individual is a client, and I cannot divulge confidential information regarding anyone who is a client.”

This statement is true even if there is public knowledge or the person or organization knows of the treatment. It is true even though the client is speaking publicly about the treatment. It is even true when there is an exception to confidentiality, such as child abuse, because exceptions to confidentiality only allow the information to go to specified people or agencies under specific circumstances.

An individual who contacts the counselor about someone he or she believes to be a client may request that the conversation with you be kept from the client. The counselor cannot make such a commitment because it may not be in the best interest of the client.

Unsolicited Information about the Client

An individual may contact the counselor with information about the client. The counselor may consider it in the best interests of the client to accept the information, but should contact the client promptly to disclose that this activity has taken place.

Exceptions to Confidentiality

Legal Limits

Confidentiality has its limits, and Texas law spells out several exceptions to client confidentiality. They are threat of harm to self or others, certain lawsuits, a court order, detention of a mentally disordered person for evaluation, and reasonable suspicion of abuse of a minor or dependent adult.

Judicial and Administrative Proceedings

LPC’s may disclose confidential client information in certain types of judicial or administrative proceedings. As a general matter, such disclosure is not mandatory; rather, it is a matter of the counselor's discretion. Such disclosure is covered under Title 7 of the Texas Health and Safety Code, § 611, and is discussed in depth in a separate course.

Prevention of Harm

Breaches of client confidentiality may arise in two other contexts: 1) harm to others, and 2) harm to self. However, the degree to which an LPC is permitted to breach confidentiality in order to prevent harm varies from state to state. Depending on the jurisdiction, such a breach may be mandatory, discretionary, or prohibited; it may also vary depending on whether the threat of harm is to the client herself or to third parties. In Texas, it is discretionary, at least theoretically. Under § 681.41(m), "[a] licensee may take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental and emotional injury to the client." And under subsection (n), an LPC must "take reasonable precautions to protect individuals from physical or emotional harm resulting from interaction within a group or from individual counseling."

Nonetheless, LPC’s should consider carefully any decision to breach client confidentiality to prevent harm, particularly to third parties. Under Texas law, it is likely that greater protection exists for LPC’s who breach client confidentiality to prevent the client from harming herself than for those who do so to prevent the client from harming others. Disclosure in the context of both harm to others and harm to self is reviewed in depth in a separate course.

Harm to Others

Many states follow the precedent case law (Tarasoff v. Regents of the University of California, 1976) and subsequent legislation in California. In Tarasoff, a therapist had been treating a patient who had become obsessed with a female student and had told the therapist that he had feelings of wanting to kill her. The therapist informed local law enforcement officials that he believed a threat of physical harm existed, but he did not advise the woman herself. The police visited the patient and determined that there was no imminent threat. Several weeks later, the patient killed the young woman.

The student's parents sued the therapist for negligence, arguing that he had a duty to warn a third party who was the object of a patient's threat (i.e., their daughter). The therapist argued that restrictions on patient confidentiality prevented him from warning the woman. The California Supreme Court disagreed, finding that a therapist does have a duty to warn an identifiable third party of a specific threat of harm made against her by a patient.

Texas courts, however, have not adopted Tarasoff. Indeed, as recently as 1998, in Thapar v. Zezulka (Thapar v. Zezulka, 1999), the Texas Supreme Court ruled that, even where a patient makes a specific threat against a readily identifiable third party, a mental health professional has no duty to warn the third party of that threat.

In Thapar, a therapist treated a patient on both an inpatient and outpatient basis for alcohol abuse, post-traumatic stress disorder, threats of suicide, and paranoid delusions related to his stepfather. During one hospitalization, the patient admitted to his therapist that he "fe[lt] like killing" his stepfather, although according to her notes, he also told her that he had "decided not to do it." (Ibid) After seven days, he was discharged; within a month, he shot and killed his stepfather. The man's widow sued the therapist for the death of her husband, alleging that the therapist was negligent in "misdiagnosing" the patient, in discharging him, in not committing him involuntarily, and in not ensuring that he took his medications after being discharged, as well as in not warning the patient's stepfather of the threat.

The Texas Supreme Court noted that in 1979 (three years after the California Supreme Court's ruling in Tarasoff), the Texas legislature had considered issues of patient confidentiality, and had enacted an extremely restrictive statute barring any disclosure outside the context of certain very limited exceptions. The court found that, under the state's patient confidentiality law, no exception existed that would have permitted the therapist to warn the patient's stepfather. Had she done so, she would have risked professional disciplinary action and a possible malpractice lawsuit by her patient. The court held that there is no legal duty to engage in an activity that is prohibited by statute, and that “[i]mposing a legal duty to warn third parties of patient[s’] threats would conflict with the scheme adopted by the Legislature... ” (Ibid)

The language of § 681.41(m) provides that an LPC "may take reasonable action to inform" of an imminent threat of harm to others. In other words, taking such action is discretionary on the part of the LPC; it is not mandatory. Moreover, the subsection specifies that an LPC may take such action "to inform medical or law enforcement personnel"; it says nothing about informing third parties themselves. Thus, if an LPC believes that a patient poses a threat to a third party, she may inform medical or law enforcement personnel, but she may not inform the person who is the subject of the threat. Finally, the language of this subsection limits such disclosures to circumstances in which there is a "probability of imminent physical injury by the client... to others." In other words, the threat must meet three requirements: It must be 1) probable; 2) imminent; and 3) it must involve physical injury. Subsection (m) does not provide for such disclosure if the threat of harm to others involves mental or emotional injury.

Harm to Self

As noted above, § 681.41(m) also governs breach of confidentiality in the event of a client's threat of harm to himself. Again, the decision whether to breach confidentiality in this situation is discretionary. However, under the subsection's language, there is arguably a stronger case for a duty to "inform medical or law enforcement personnel" in the event of a client's threat to harm himself than in the event of a client's threat to harm a third party.

With regard to threats of harm to third parties, the statutory language limits disclosures to situations involving a threat of physical injury. With regard to a client's threat to harm himself, however, an LPC has discretion to "inform medical or law enforcement personnel" if there is a "probability if imminent physical injury... to the client" or if there is a "probability of immediate mental or emotional injury to the client."

In determining whether to disclose such a threat of injury, two requirements must be met. However, LPC’s should also note that the requirements differ depending upon the type of injury. If the threat is of physical injury, the threat must be both 1) probable and 2) imminent, For a threat of mental injury, the threat must be 1) probable and 2) immediate. Likewise, for a threat of emotional injury, the threat must be both 1) probable and 2) immediate.

Abuse, Neglect, or Exploitation of Children or Elderly Persons

Threats of harm to others that involve child abuse or neglect fall into a separate category, covered under Title V of the Texas Family Code, § 261. Under § 261, an LPC who suspects that child abuse is occurring has a duty to report it within 48 hours of the LPC's first suspicion. Such reports must include the child’s name and address; the name and address of the child’s parent(s) or guardian(s); and any other “pertinent information." Reports may be made to a variety of state entities, including:

·          a local or state law enforcement agency;

·          the relevant governmental department, if applicable;

·          the relevant state licensing agency or other administrative body, if applicable;

·          a child protective agency designated by a court; or,

·          instances involving abuse of one child by another child, the Texas Youth Commission.

As a general matter, LPC’s who breach client confidentiality for purposes of reporting suspected child abuse or neglect, and do so in good faith, are immune from civil or criminal liability. These and other applicable provisions of the Texas Family Code are the subjects of another course.

Threats of harm to others that involve abuse, neglect, or exploitation of elderly persons also fall into a separate category, covered by Chapter 48 of the Texas Human Resources Code. Again, as with abuse and neglect of children, LPC’s have an affirmative duty to disclose such suspicions. Failure to report is a misdemeanor, and the LPC may be subject to professional discipline.

Sexual Exploitation by Mental Health Services Provider

A final form of harm to others involves sexual exploitation of clients. Under Title 4 of the Texas Civil Practice and Remedies Code, § 81, if an LPC suspects that a client is being sexually exploited by another mental health services provider, she has an affirmative duty to report. Failure to do so is a misdemeanor, and risks professional disciplinary action. Such disclosure is discussed in detail in a separate course.


A lawsuit may result in a subpoena for client information. A subpoena is not a court order, and the counselor is obligated to preserve client confidentiality unless there is an exception or an appropriate and authorized release of information. The counselor can respond to such a subpoena by stating that he or she can neither confirm nor deny that any given individual is a client, and cannot release information from a client record without consent or a court order.

Treatment by Another LPC

Client confidentiality may also be breached in the event that an LPC discovers that she is treating a client who is already undergoing treatment with another LPC. Under § 681.41(l), an LPC "shall not knowingly offer or provide counseling treatment intervention from another mental health services provider except with that provider's knowledge." Once an LPC discovers that such a situation exists, she is required to "take immediate and reasonable action to inform the other mental health services provider." At a minimum, the LPC thus must disclose the client's identity and the fact that she has been treating the client; in the course of resolving the situation in a way that best promotes the client's welfare, she may also need to disclose specifics of treatment. However, if such a situation arises, an LPC should take care to disclose as little as possible. The more information that is disclosed, the greater the risk of professional disciplinary sanctions or civil litigation.

V. Record-Keeping and Documentation:

Maximizing Client Benefit, Minimizing Legal Risk

Record-keeping and documentation requirements are covered under § 681.41(o)-(p). Among the topics that fall into this category are the following requirements:

·          Keeping of accurate records, including (but not limited to) intake documentation, including assessment, treatment plans, dates of treatment, types of treatment, complete and relevant case notes, and billing and payment records.

·          Billing records, including (but not limited to) fee schedules, explanation of services and applicable fees; documentation of billing and payment history; and insurance accepted, coverage limits, and associated documentation.

·          Retention of records, including (but not limited to) retention methods, required length of retention, differences in retention requirements for adult and child clients, security and storage issues, and disposal.

·          Plan for transfer of patient records in event of practice closure, etc.

·          Exceptions to record-keeping requirements, including (but not limited to) educational institutions and governmental entities.

The American Psychological Association (APA) has issued model record-keeping guidelines. (American Psychological Association, 2007) As with all APA model guidelines, the guidelines make it clear that " They are not definitive and they are not intended to take precedence over the judgment of psychologists." (Ibid)

As the APA guidelines make clear, client benefit is the most important reason for maintaining and retaining accurate records. Complete and accurate records make it possible to track client treatment and progress (or lack thereof), develop and alter treatment plans appropriately, and ensuring that the client receives the best possible care. However, complete and accurate record keeping also benefits the therapist in a variety of ways. First and most obviously, they help the therapist to ensure proper treatment and promote client welfare. Second, they help LPC’s ensure compliance with state and professional regulatory requirements, as well as necessary insurance, benefits, and related documentation. Third, but by no means least, they help protect LPC’s in the event of professional disciplinary charges, a malpractice suit or other civil litigation, or criminal charges.

Patient Records

The records that Texas LPC’s must create and maintain are outlined in § 681.41(o). Under this subsection, an LPC is required to "keep accurate records of the dates of counseling treatment intervention, types of counseling treatment intervention, progress or case notes, intake assessment, treatment plan, and billing information." Content that falls into these categories should be regarded as the minimum required under the statute: If an LPC's practice generates other types of patient data that are not specifically itemized in § 681.41(o), it is likely to be prudent to include such information in a client's formal record. It is also prudent to include a copy of all documentation provided to a new patient during the intake process, as required under § 681.41(e).

APA guidelines state that, “Records include information such as the nature, delivery, progress, and results of psychological services, and related fees.” (Ibid)

The APA sets forth three kinds of information that the record may include:

Information in the client’s file:

·          identifying data (e.g., name, client ID number);

·          contact information (e.g., phone number, address, next of kin);

·          fees and billing information;

·          where appropriate, guardianship or conservatorship status;

·          documentation of informed consent or assent for treatment (Ethics Code 3.10);

·          documentation of waivers of confidentiality and authorization or consent for release of information (Ethics Code 4.05);

·          documentation of any mandated disclosure of confidential information (e.g., report

·          of child abuse, release secondary to a court order);

·          presenting complaint, diagnosis, or basis for request for services;

·          plan for services, updated as appropriate (e.g., treatment plan, supervision plan, intervention schedule, community interventions, consultation contracts).

·          health and developmental history.

For each substantive contact with a client:

·          date of service and duration of session;

·          types of services (e.g., consultation, assessment, treatment, training);

·          nature of professional intervention or contact (e.g., treatment modalities, referral, letters, e-mail, phone contacts);

·          formal or informal assessment of client status;

The record may also include other specific information, depending upon circumstances:

·          client responses or reactions to professional interventions;

·          current risk factors in relation to dangerousness to self or others;

·          other treatment modalities employed such as medication or biofeedback treatment;

·          emergency interventions (e.g., specially scheduled sessions, hospitalizations);

·          plans for future interventions;

·          information describing the qualitative aspects of the professional/client interaction;

·          prognosis;

·          assessment or summary data (e.g., psychological testing, structured interviews, behavioral ratings, client behavior logs);

·          consultations with or referrals to other professionals;

·          case-related telephone, mail, and e-mail contacts;

·          relevant cultural and sociopolitical factors. (Ibid)

Within these minimums, LPC’s have substantial discretion. For example, determining what information (i.e., the amount of detail) makes patient records on assessment or consultation is a matter of the individual LPC's professional judgment. Creating detailed records not only helps the clinician’s recollection, but also fulfills the needs to transfer detailed information required for matters such as transfer of care and hospitalization. Also, there is the concern that the clinician may be vulnerable to malpractice issues inflamed by inadequate records.


Billing records are covered largely under § 681.41(r), which also addresses billing and fee-related issues that fall into such categories as scope of treatment and disclosure. However, the types of documentation that must be provided to a new patient upon initial consultation, including "fees and arrangements for payment, are covered under § 681.41(e).

The basic requirement of subsection (r) provides that LPC’s "shall bill clients or third parties for only those services actually rendered or agreed to by mutual understanding at the beginning of services or as later modified by mutual written agreement." The language shown here in italics is crucial. Under subsection (e) of the statute, new patients must be advised of fee and payment arrangements in writing before or during the initial consultation. Subsection (f) requires an LPC to notify clients in writing of any change to any of the information required under subsection (e), and must do so before the change takes effect. Taken together, the language of subsections (e), (f), and (r) makes clear that LPC’s must notify clients in advance and in writing of any modifications to fee agreements and payment arrangements, regardless of when in the course of the therapeutic relationship such modifications are made.

Billing records also must be accurate. Subsection (r)(1) requires that billing documents indicate "[r]elationships between a licensee and any other person used by the licensee to provide services to a client." Subsection (r)(3) prohibits an LPC from "knowingly or flagrantly overcharg[ing] a client." Finally, under subsection (r)(4), an LPC may not submit a bill to a client, insurance company, or other third-party payor "for counseling treatment intervention that the licensee knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary," although LPC’s are permitted to bill for appointments a client has failed to keep.

Billing records provide special ethics pitfalls: Failure to maintain them properly may subject an LPC not only to professional discipline, but also to criminal liability, which may include state and federal fines, administrative penalties, and a prison sentence.


With regard to retention of records, the key is security: physical security of the actual records themselves; and security of the records' content (i.e., confidentiality). As APA guidelines make clear, LPC’s "have ultimate responsibility for the content of their records and the records of those under their supervision." (American Psychological Association, 2007) As a result, they urge that therapists "oversee the design and implementation of record keeping procedures, and monitor their observance." (Ibid)

When designing record-keeping and retention systems, LPC’s should keep certain objectives in mind. Records must be created in a timely fashion, to allow for inclusion of all necessary data while the information is still fresh in the LPC's mind. They should be legible and comprehensible to those who must use them. This may mean typing patient notes to avoid misreading of illegible handwriting. They should also use terminology that is generally accepted in the profession, so that, in the event that another professional must use them (e.g., during a consult) when the LPC is not present to translate, there are no misunderstandings. For LPC’s who use their own private form of shorthand in making patient notes, this may require translating those notes into generally accepted professional terms when reducing them to permanent patient records.

Records must also be organized in a way that permits timely access and retrieval by those who must use them. Storage methods vary: Some practitioners continue to use ordinary paper charts and files; others use only electronic media, which may include a computer's hard drive, CD-ROMs, floppy disks, etc.; and some use a combination of paper and electronic media. Whichever method(s) an LPC chooses, it should be stable, secure, protected from internal damage (such as computer viruses or file corruption) and external damage (such as fire, weather, and vandalism), and retrievable. Security measures are discussed below.

Another essential issue with regard to retention is availability (i.e., the length of time that individual records must be retained and produced if necessary). These standards vary by jurisdiction, and may even vary between federal, state, and local laws and the requirements of professional licensing bodies.

In Texas, statutory minimums apply to retention of LPC client records. Length of retention is covered under § 681.41(p): Adult patient records must be retained for a minimum of seven years before destroying them. LPC’s must retain the records of patients who are minors (or who were minors when they began treatment) for a minimum of seven years beyond the time that the child reaches age 18.


Transfer of records is necessary for a number of reasons, including transfer of care and coordination of treatment. § 681.41(y) provides: "A licensee shall establish a plan for the custody and control of the licensee's client mental health records in the event of the licensee's death or incapacity, or the termination of the licensee's counseling practice. A licensee shall inform each client of the plan." The term "incapacity" may cover a host of circumstances: serious illness; physical injury; mental or psychological disability, whether temporary or permanent; or substance abuse or addiction problems.

However, LPC’s should not assume that these are the only circumstances that may require transfer of client records. In order to ensure both client welfare and full compliance with the statute and ethical guidelines, LPC’s should plan for the safe and effective transfer of client records in case of other eventualities.

A variety of other events in an LPC's professional and/or personal life can necessitate the need to transfer patient records to another practitioner. Such events often occur suddenly, with little or no warning, and may require immediate action. Examples may include (but are not limited to) the following:

·          family or personal pressures or obligations (e.g., the need to care for a gravely ill family member, etc.);

·          a professional sabbatical;

·          a temporary professional change, such as a visiting faculty appointment at an educational institution;

·          an extended vacation;

·          relocation to a new city or state;

·          inability/failure to obtain or renew license, certification or credentials for specialized area of practice, etc.;

·          professional discipline, including license suspension or revocation;

·          malpractice or other civil litigation or criminal proceedings;

·          closure of practice, either temporarily or permanently; or

·          the need to terminate a client's treatment (e.g., because of personal conflicts, lack of progress, patient request, etc.).

As with requirements for the LPC's own retention and storage of patient records, any plan for transfer of those records should take into account certain fundamental requirements. These plans should include a “professional will” that specifies how the records will be transferred in case of the LPC’s death. (Holloway, J. W., 2003) Any method for transfer should ensure that records remain legible, readily accessible, and secure.


Under § 681.41(q), certain exceptions apply to the retention requirements for patient records. LPC’s who create client records "during the scope of their employment" by certain types of entities are not required to adhere to the seven-year minimum for retention of records. These entities are limited to the following three categories:

·          educational institutions;

·          governmental agencies at the federal, state, or local level; and

·          "political subdivisions or programs" of federal, state, or local governmental agencies.

"Educational institutions" and "governmental agencies" are self-explanatory. The label "political subdivisions or programs," however, is not so clear. An example of a relevant "political subdivision" of a governmental agency might be an agency task force convened to address a particular public need. Similarly, a relevant "program" might be a benefits or treatment program administered by, e.g., a state health or social services agency.

LPC’s should keep in mind, however, that the statutory exception may not shield counselors from liability in malpractice litigation or professional disciplinary action. Minimal compliance with a statutory requirement may result in loss of records necessary for defending one’s actions.

Practical Considerations

Today, perhaps the most significant practical consideration in maintaining confidentiality of patient records concerns the risks to electronic data.

Dangers to electronic data used to be limited largely to "hacking," or illegally breaking into another's computer to obtain information. Hackers often engage in such activities for "sport," rather than because they actually want access to the information they retrieve, but the breach to client confidentiality is no less real. With the rise in Internet usage, however, threats to electronic data have increased drastically, and take a variety of forms. Often, no "hacking" is required. Three of the most popular forms are known as "viruses," "worms," and "Trojan horses"; they refer to different types of files that are created specifically to gain access to another's computer files to obtain data, destroy data, or both. "Viruses" are so named because they "infect" computer files with code that alters or destroys them. "Worms" are named for their ability to "worm" their way into a computer's files and wreak havoc. "Trojan horses" operate exactly as the original Trojan horse: They appear to be innocuous files designed for ordinary use, but they contain hidden strings of malicious programming code; once the files are downloaded onto a computer, the code is released and disrupts or destroys the user's data.

Worse, such electronic threats can be downloaded onto a user's computer by way of a Web browser or, most frequently, and e-mail program. In addition, while most e-mail programs and Internet service providers offer "spam" and virus blockers and other security measures, they are unable to keep pace with the threats. As soon as programmers devise a way to neutralize the latest threat, a new one is created that circumvents the latest security measures. Moreover, many viruses, worms, and Trojan horses are designed to "mutate": They contain program code that permits them to adapt to and avoid new security measures.

LPC’s, like many other professionals, frequently belong to Internet newsgroups and e-mail "listservs" that help them stay updated on practice developments and other important issues. For most LPC’s, refusing to use electronic data is impractical; under certain circumstances, it may even put them at risk for charges of malpractice. It is thus crucial that therapists use basic electronic security measures, such as "spam" blockers, virus blockers, anti-virus programs, firewalls, password protection, data encryption, and off-site back-up to ensure, as far as it is possible to do so, that patient records remain safe, secure, and confidential. LPC’s should consider using a separate computer for clinical records.

LPC’s who protect patients' electronic records and other data as stringently as they would safeguard their own most sensitive information are more likely to be in compliance with state statutory and professional requirements, and are also more likely to meet the requisite standard of care that will help them avoid malpractice or other civil litigation.

Other Requirements

Under § 681.41, a few other general ethical requirements apply:

§ Subsection (v) provides that an LPC "shall not aid and abet the unlicensed practice of professional counseling by a person required to be licensed under the Act"; and

§ Subsection (w) provides that "[a] licensee or an applicant for licensure shall not participate in any way in the falsification of applications for licensure."

Under these requirements, an LPC thus may not engage in unlicensed practice herself or falsify information related to her application for licensure. However, she also may not "aid and abet" the unlicensed practice of any student, license applicant, or counselor under the LPC's supervision, or for whom the LPC provides a reference. The requirement that she may not "participate in any way in the falsification of applications for licensure" contains no additional guidance as to the meaning of the word "participate." LPC’s thus should assume that "participate" is defined broadly: It likely includes not only situations in which the LPC falsifies information herself, but situations in which the LPC knowingly permits another individual (e.g., a student, supervisee, or applicant for whom the LPC serves as a reference) to submit an application containing false information.

Appendix: Texas Administrative Code, Title 22, Part 30, Chapter 681:

RULE §681.45: Confidentiality and Required Reporting

(a) Communication between a licensee and client and the client's records, however created or stored, are confidential under the provisions of the Texas Health and Safety Code, Chapter 611 and other state or federal statutes or rules where such statutes or rules apply to a licensee's practice.

(b) A licensee shall not disclose any communication, record, or identity of a client except as provided in Texas Health and Safety Code, Chapter 611 or other state or federal statutes or rules.

(c) A licensee shall comply with Texas Health and Safety Code, Chapter 611, concerning access to mental health records and confidential information.

(d) A licensee shall report information if required by any of the following statutes:

  (1) Texas Family Code, Chapter 2614, concerning abuse or neglect of minors;

  (2) Texas Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly or disabled persons;

  (3) Texas Health and Safety Code, Chapter 161, Subchapter K, §161.131 et seq., concerning abuse, neglect, and illegal, unprofessional, or unethical conduct in an in-patient mental health facility, a chemical dependency treatment facility or a hospital providing comprehensive medical rehabilitation services; and

  (4) Texas Civil Practice and Remedies Code, §81.006, concerning sexual exploitation by a mental health services provider.

  (5) A licensee shall comply with Occupations Code, Chapter 109, relating to the release and exchange of information concerning the treatment of a sex offender.

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