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  • May 09, 2019 1:47 PM | Anonymous

    One of the questions I hear a lot from counselors is: Is it really necessary to write a progress note? And if so, how much do I have to write?

    The answer to the first question is simple and straightforward: Yes. Counselors in Washington State do, by law, have to keep a progress note on every client session. The answer to the second question is less clear, and depends on circumstances.

    Both federal and Washington State laws are quite clear about the fact that a progress note must be maintained; and to some extent, the law even says what must be included. In addition, the Washington Administrative Code (WAC) states that the licensed counselor must maintain a progress note that is “… sufficient to support responsible clinical practice for the type of theoretical orientation/therapy the licensed counselor uses.”  (WAC 246-809-035)

    What is “sufficient”? What will sufficiently “support” clinical practice? What is “responsible”? These terms are subjective. So the good news is that, at least to some extent, it is up to you to decide what you believe is sufficient, supportive, and responsible to your clinical practice.

    I have spoken to counselors who freely admit that they purposefully write notes that are illegible, even to them, stating that doing so protects them from intrusion. They explain that they do this to ensure and preserve ultimate confidentiality of the record. They assert that if they were ever called upon to disclose their notes, the notes would be impossible to read and would therefore be insulated. Needless to say, this is a bad idea.

    In my experience, this rationale is wrong-minded for three reasons. First, it is unwise because it is not true. You will not be insulated. You will simply look inept. The lack of legible notes will only show that you are oblivious to your legal obligation to communicate what transpired. Second, it is reckless. It is reckless because you are taking a chance that could put your entire livelihood at risk. The note does, by law, have to be sufficient to support responsible clinical practice for the type of theoretical orientation/therapy the licensed counselor or associate uses; and if it can’t be read, it could likely be deemed insufficient. And third, if you fail to keep a legible note, you squander the opportunity to demonstrate your ability to conceptualize a case, form and address treatment goals, conduct therapy, and provide clear evidence of client progress.

    Progress notes have a purpose, and that purpose serves you as well as your client. As with the informed consent and disclosure, the progress note serves a legal, clinical, and ethical function. Legally, as stated above, notes are required. In the law, a contemporaneous note written as part of the normal course of business (a note recorded during or directly after the session) has special value and is generally given greater weight than either a spoken account by memory or a written report made long after an event occurs. The closer to the time of services the record is written, the more likely its accuracy and veracity will be accepted. It can be reinforcing of your skills, conduct and, generally, your version of events, should your actions ever be challenged.  Notes also provide evidence that you observed your professional standard of care.

    Occasionally, a client may request that no record be kept of their sessions. The WAC acknowledges that a client may request that no record be kept, and you may agree to the request. Even so, there are some data that you still have to retain, including the client’s written request that you not keep a record. However, as we consider the benefits of the progress note, as well as its value to you should anything go wrong, I generally encourage counselors to think twice before they forego the opportunity to preserve a written record that demonstrates competency.

    The clinical function of the progress note is also important and serves many functions. The note demonstrates your clinical proficiency. It supports continuity of care to other healthcare providers. It creates a springboard for further work if the therapy gets “stuck” and you want to review. It shows that you conducted serious, purposeful treatment with professional treatment goals in mind. Further, notes show when you comply with your responsibility to identify and/or report concerns of client harm to self, others, or the public, or abuse of vulnerable populations. Notes show that services occurred. They may provide a written rationale for your decisions, notice of termination, and referrals made.

    In addition to the progress note, you may wish to keep a “psychotherapy note.” This is a note that, by definition, is stored separate from the progress note, and is solely for you. HIPAA states that a client’s legal right to access the record does not extend to the psychotherapy note. However, you may not share the psychotherapy note without the client’s consent, except to defend yourself as, for example, from a DOH complaint.

    The ethical function is articulated in Codes of Ethics. The NASW Code of Ethics states that social workers “… should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided“ and should be able to  “ensure continuity of services provided to clients in the future.” (NASW COE 3.04) Thus, a timely and accurate note serves our ethical duty.

    Whether a progress or a psychotherapy note, it is important to keep in mind that it is possible that these notes may be read by other providers, as well as by lawyers, judges and, importantly, your client. Counseling is challenging work, and you may be tempted to vent. Remember always to write the note with care. Your client may read it one day.

    What about method and length? Method is up to you. You can keep a problem-oriented medical record or a solution-focused note, as you please, as long as it is “sufficient to support responsible clinical practice of the type of theoretical orientation/therapy” that you use.

    There’s more information involved in the topic of clinical notes than I can cover in this article. In my trainings on this subject, I discuss length, content, types of notes to use, and how long to hold onto them.

    But what about you? Is there another function that serves you? I believe that session notes are key to risk management of your practice. Your notes serve as an opportunity for you to produce a body of evidence to support your practice. When you write a timely note that truthfully records responsible clinical interventions, progress and psychotherapy notes may be all that stand between you and a successful complaint lodged by an angry complainant. The progress note can create a foundation for your self-defense, should the need ever arise. This is no small thing. Why in the world would you want to deprive yourself of such a rich resource?

    In short: Inadequate records can sink your practice, and thorough records can save it. Complainants can make all sorts of claims; but if you adequately document your sessions, you can refute with a reliable version of events. Incidents of touch, a client’s wish for a personal relationship, a request for a legal opinion that is out of your scope, or a client’s frustration that you have not successfully alleviated existential pain, can all be addressed with solid session notes that show you performed professionally.

    My goal is to help you stay safe as you help your clients get better. Responsible record keeping is entirely do-able. Learning to write notes that manage risk can be invigorating and empowering. Maintaining sufficient records can protect your license, preserve your livelihood, and help you breathe easy. With proper guidance, you can understand best practices to handle awkward moments with clear boundaries that reinforce scope of practice within the standard of care.

    Frances Schopick, JD, MSW is an attorney with an extensive background in clinical Social Work and psychiatric research. She represents counselors who have DOH complaints against them, receive subpoenas, need to attend depositions, or are called to testify in court. She also provides consultation for ethics, risk management, and setting up disclosure forms for your practice. If you have any questions, you may feel free to contact her at fschopick@comcast.net or 425-891-3411. She provides initial consultations at no charge, and is happy to respond to your questions.

    Disclaimer: Nothing in this article should be construed as legal or clinical advice, consultation, or supervision. Every situation is fact-specific, and must be considered individually.

     

  • December 09, 2018 8:28 AM | Emily Fell

    Laura Groshong, LICSW, WSSCSW Legislative Consultant

    It has been a major frustration that for the past 20 years LICSWs have not been eligible to provide mental health services for people who are injured on jobs which are covered by Workman’s Compensation.  Many of us have had calls from people who have this coverage and cannot find psychologists or psychiatrists, the only clinicians covered, who will see them. Labor and Industries (L&I), the oversight agency for Workman’s Compensation, has finally agreed to set up a pilot project to give LICSWs and other Master’s level clinicians a chance to provide these services.  I have attended four 3-hour meetings this year and will attend several more to develop the project which will start in 2019 and will go until 2021, at which time it will hopefully become permanent.

    L&I is a system unlike any other.  The closest system that parallels it is EAP work but even that is not a perfect comparison. Anyone providing psychotherapy will have to communicate with the attending physician, the claims manager, and the employer. Another difference is that the codes that are used will be the HBAI codes, not the DSM codes, which are based on functionality, not a disorder. One more difference - reimbursement is calculated is in 15 minute increments, not by CPT codes.

    HIPAA does not apply to L&I; they have an exemption.  This may lead to some of us deciding to pass as the confidentiality we generally expect does not protect patient communications in this plan.  On the other hand, we are entering the brave new world of Integrated Care where many of these changes will also apply, e.g., there will have to be reports every session to the rest of the 'team' on how the initial goals are being achieved.

    As for coverage in L&I,  six sessions will be provided without prior authorization, another six if progress is being made.  Another six will be allowed if needed. Any more than 18 sessions will push the patient into the Independent Medical Evaluation (IME) system which is something that L&I wants to avoid, as it is much more expensive. It thus causes increased expenses for the L&I and employers.

    In short, there will be a steep learning curve for anyone wants to be part of the pilot project (which should be somewhere in the 200-300 range for LICSWs in the pilot project).  There will be several trainings before the project goes ‘live’ next year. I will keep you posted.


    Laura Groshong, LICSW is a Legislative Consultant for WSSCSW. She can be contacted at lwgroshong@comcast.net.

  • May 25, 2018 9:18 AM | Emily Fell

    Background on the Volk case:

    In December of 2016 the Washington State Supreme Court rendered a decision in Volk v. DeMeerleer that has resulted in legal confusion regarding a practitioner’s duty to warn third parties when a patient explicitly or implicitly expresses a plan to harm another person, and their duty to protect the public at large from patients with “dangerous propensities” when a patient expresses non-specific plans to harm others.  By this interpretation of law, clinicians, including LICSWs, could be seen as responsible for preventing violence by their current and former patients because of the “special relationship” that exists in psychotherapy.

    Many clinicians and attorneys believe that the court’s decision will dramatically increase practitioner liability. In effect, the decision expands the practitioner’s duty to predict a potential for violence even if the patient has not expressed violent thoughts, and to warn third parties in the public not specifically named by the patient. Because the Volk case ultimately settled without a jury trial, the Volk decision stands and cannot be appealed. Following the 2016 decision  an attempt was made to change the legal liability of mental health care providers in Washington State law to conform once again to recognized standards for duty to warn, but those efforts have failed, and for the near future any statutory fix is politically unlikely.

    Why is a Volk fix so hard?

    The hardest and most important part of advocating in Olympia is proving there is a problem that needs to be fixed. There are many ways to prove a problem; sometimes we use individual experiences, sometimes we use statistical data and hypothesis, and sometimes we point to a flaw in the law and demonstrate a legal need. But to be successful, this proof of problem is crucial.

    Unfortunately, in the Volk case, although you may see the circumstantial problem, we lack a clear legal problem. Because the Volk case ultimately settled out of court and we do not have a jury decision in the case, all we are left with is a Supreme Court decision that said that the case COULD go forward.  This leaves practitioners with questions regarding what our duties are to warn and/or protect, particularly as it pertains to unspecified third parties.

    Beyond just the “proof of problem,” Volk comes at a time when the public and legislators are increasingly concerned about public safety.  Despite evidence to the contrary, much of the public, and the legislators that represent them, believe that the epidemic of violence in this country is perpetrated by those with mental illness. In reality, we know that those suffering from mental illness are more likely to be victims of violence rather than perpetrators.  Until our legislators have a better understanding of this nuanced issue, they will remain extremely reticent to change, or even clarify, the obligations mental health practitioners have in protecting public safety.

    So, what can we do now?

    At our request, the State’s 2018 Supplemental budget includes a small budget proviso that reads:

    $40,000 of the general fund—state appropriation for fiscal year 2019 is provided solely to create a work group at the Robert Bree collaborative to identify best practices for mental health services regarding patient mental health treatment and patient management. The work group shall identify best practices on patient confidentiality, discharging patients, treating patients with homicide ideation and suicide ideation, recordkeeping to decrease variation in practice patterns in these areas, and other areas defined by the work group. The work group shall be composed of clinical and administrative experts including psychologists, psychiatrists, advanced practice psychiatric nurses, social workers, marriage and family therapists, certified counselors, and mental health counselors.

    This budget proviso will allow representatives from various mental health professions to come together to work on best practices across disciplines, focusing on those areas that were seen as problematic in the Volk case. These best practices will, in and of themselves, be a legal defense against liability because adhering to best practices can be a legal defense against negligence.

    Beyond working on these best practices, we need to begin educating our policymakers and the public about violence and mental health. We need to be partners on this issue.  Then, unfortunately, we must wait for something that proves a problem. Given that this started as a lawsuit, the most likely scenario is another lawsuit, with a jury verdict that will directly point to the ambiguities in the current law and provide the motivation to fix it.  In the meantime, we will continue finding ways to improve current policy that do not require a statutory change in liability.

    What does this mean for my practice?

    Naturally, the apparent expansiveness of this case creates some anxiety for us as practitioners. The best course of action is to continue to adhere to current best practice standards and to document our efforts to assess risk and create safety, thoroughly and completely. LICSWs are advised to continue to gather further information from clients who may be homicidal or suicidal and  make informed judgments about what resulting actions to take. Consultation is one of the best ways to protect ourselves from liability--it is wise to include the names, contact information and time of consultation of any other professionals who have been contacted, along with documentation of risk assessment, safety planning, professional conclusions and any foreseeable victims of harm. If a client misses multiple appointments or falls out of contact, timely follow up,  documented notifications of delinquency and case closure against clinical recommendation, are also responsible practice.

    If a clinician determines that there is a threat of imminent harm, meaning that “harm is likely to occur at any moment or near at hand” (RCW 71.05.020(20)), the clinician may disclose the minimum necessary information needed to protect potential victims, to such parties as the police, Designated Mental Health Professionals, other mental health professionals, lawyers, doctors etc., and the potential victim themself. Prudent LICSWs should make clear, documented efforts to assess homicidal risk and comply with duty to warn.  A formal risk assessment would also be helpful in minimizing liability and should be included in the patient record. Please refer to the following tool for Risk Assessment, developed and generously shared by Wellspring, for use in the case of concern about possible violent action by a client. You are also strongly encouraged to tap into the wealth of knowledge in the WSSCSW community as added support for general questions and dilemmas. Best practices like these will help us treat our clients ethically and professionally and promote safety throughout the communities we serve.



  • May 25, 2018 9:10 AM | Emily Fell

    WSSCSW’s lobbyists are hard at work pushing for the changes in our state legislature that we want to see for the health of our profession and our clients. The 2018 Session saw a number of big wins for mental health, including large state investments in our community mental health system. Approximately 130 million dollars was allocated for community mental health--the greatest investment in years! Here are some highlights from this year’s whirlwind short session:

    Children’s Mental Health HB 2779 - PASSED. This bill does a number of important things, including requiring stakeholders to work on the Parent Initiated Treatment (PIT) Process. DSHS must convene an advisory group of stakeholders to review the PIT process and develop recommendations regarding:

    • the age of consent for behavioral health treatment of minors;

    • options for parental involvement in youth treatment decisions;

    • information communicated to families and providers about the PIT process; and

    • the definition of medical necessity for emergency mental health services and options for parental involvement in those determinations.


    The advisory group must also review the effectiveness of serving commercially sexually exploited children using PIT, involuntary treatment, or other treatment services. By December 1, 2018, DSHS must report the findings and recommendations of the advisory group to the Children’s Mental Health Work Group. WSSCSW has requested to participate in the PIT advisory group to advocate for youth interests and responsible, healthy parental involvement.

    Banning Conversion Therapy SB 5722 - PASSED. It is now an unlawful practice for any mental health provider to practice so called “conversion therapy” with LGBTQ minors.  We are the 10th state in the US to ban conversion therapy.

    An Act Related to Preventing Suicide by Permitting the Voluntary Waiver of Firearm Rights SB 5553 - PASSED.  This bill allows individuals to voluntarily waive their rights to purchase a firearm for a temporary period of time and can be used to help protect clients who are at risk for suicide. According to this bill, by January 1, 2019, the clerk of court will have developed a procedure by which an individual can sign a voluntary waiver and add their name to the Washington State Patrol electronic database. After seven days, the same individual will be able to revoke the waiver. The identity of those utilizing the procedure will be protected from public record throughout.

    Volk- No Legislative Action Available. There is still work to be done in the aftermath of the Volk decision, but it will have to be done outside the legislative session. This has been one of our primary areas of legislative effort in recent years due to its potential implications for practitioner liability. This year, we have gained a budget proviso that will allow us to develop best practice standards, which can be used as a legal defense against charges of negligence, but the court ruling will stand. For a more in depth look at the Volk case and its implications, please refer to the article Understanding Volk, also to appear in On Our Minds.

    Join the Effort!

    As you can tell, we’ve made significant progress in some areas, and still there is much work to be done! WSSCSW will be hosting an event for your continued education and involvement in our legislative efforts--you will have the opportunity to meet our lobbyist, express your legislative concerns and find out how you can help us accomplish our ongoing goals for advocacy in the coming months and years. Now, more than ever, we need to be vocal on behalf of our profession and the clients we serve so that we can sustain and grow the health of our communities. Detailed event information will be emailed to members and posted to the events calendar soon!



  • January 27, 2018 11:17 AM | Emily Fell

    Greetings from your Society lobbyists! The 2018 legislative session is about to start and will be what is called a “short” session (two months instead of the alternative-year four month, “long” sessions).   Most work will be to ‘kick the can’ down to next year’s session.  Here are the biggest issues that will affect clinical social work practice:

    1. Volk Decision -- We hope to pursue guidance and or training from the state to clarify the duties and obligations of mental health providers as a result of the Volk decision; this took most of our energy last year and is still an ongoing discussion.  The UW Law School Volk Survey Report was issued on December 1, 2017, and while it supported many of our concerns about the increased responsibilities of clinicians, there is no guarantee that the legislature will agree with the Report’s conclusions.  Nonetheless, we will be working hard to find a way to limit what appears to be an increased duty to warn.

    2. Ban Conversion ‘Therapy’ – Conversion ‘therapy’ is actually a position with religious roots that sees LGBTQ people as mentally ill and in need of ‘therapy’ to become mentally healthy. About 10 states have banned the use of conversion ‘therapy’, most commonly provided by clergy members, because it has caused so much emotional harm.  We hope to see Washington become the next state to ban it, a more likely prospect, since the Senate became Democratic last month.

    3. Medicaid Reimbursement – We all know how impossibly low the reimbursement rate is for mental health services under Medicaid.  The group most hurt by the lack of clinical services is children.  A bill is being dropped* to increase reimbursement rates for work with children, including coverage for any children with eating disorders.  This bill will also stop the rise of pre-authorizations for mental health services for children, which have again become a problem.

    4. Children’s Mental Health Work Group – In addition to the issues in #3 above, this Group will look at ways to preserve the rights of adolescents to confidentiality in mental health treatment, if they want it, while giving parents some information about their adolescent’s treatment.  This long-fought battle is still a difficult balancing act.  The Society will provide comments on this issue.

    5. Medicaid Mental Health Funding – Related to #3 above, this bill will be an effort to support increasing mental health provider reimbursement rates, especially for at-risk adults. Prevention would be the primary goal.

    Melanie Smith, our lead lobbyist in Olympia, and I will be working primarily on these issues at this point; more may arise as the session progresses.  We will be in close communication with Julia Kocian, LSWAIC, the Society Legislative Chair, and look forward to continuing to share information and updates.

    * Note: In the House, bills are introduced when they are dropped in the hopper, a wooden box on the House floor.

  • January 23, 2018 7:55 AM | Emily Fell

    The WSSCSW Ethics Committee created the following PowerPoint presentation to outline recent changes made by NASW to the NASW Code of Ethics. The Ethics Committee is committed to providing opportunities for members to think together about ethical challenges that arise in our field and practices. The committee chair, Ross Artwohl, is available for consultations as needed.  Ethics consultations can be scheduled either by phone (541) 223-2961 or email ethics@wsscsw.org

    Please click the image below to open the presentation on the recent NASW revisions to the code of ethics.


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