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Ethics

  • September 23, 2018 2:39 PM | Emily Fell (Administrator)

    Do you use a phone to schedule or screen clients? Do they leave voicemails or send you text messages? If you said “yes” to either of these questions, then you need to make sure you’re using a phone service that is HIPAA compliant. How do you do so? You’ll need to sign a contract with the phone service provider called a “Business Associate Agreement”, better known as a “BAA.” This contract tells the phone service provider that they cannot use any data from your call logs, voicemail recordings or text messages for any reason. Why would service providers  want to? Because phone companies often use this data to better understand how their customers use their services and sometimes they also sell this data to third parties for marketing purposes. I know that’s scary, but don’t worry. There are several providers that will sign BAA’s with clinicians, the most common being AT&T, Verizon, and Spruce.

    Which one should you go with? The goal of this article is to help you learn HOW, not what, to choose when finding a phone and voicemail provider for your practice. Each provider’s price, options and quality of service will change over time, so the selection process is key.

    For example, I’ve heard wonderful stories about the ease of going with AT&T and recounts of nightmares. I’ve heard Verizon is very affordable and it’s astronomically expensive. I personally use Spruce and really like it, but it’s not perfect and some colleagues think the cost is far too high for their budget.

    When choosing the right provider for you, make sure you know if the provider is a traditional phone provider, like Verizon or AT&T, OR if it’s a “VOIP”, which stands for “Voice Over Internet Protocol”. With VOIP the phone services, the voicemail recordings, and the text messages between you and clients are stored online and not on phones, or computers. This helps to lower the risk of a data breach should a phone be lost or stolen. Communicating with clients through text in an unsecure environment (e.g. your personal cell phone), actually means you’re violating several laws, codes of ethics and regulations; if you don’t have to log in to get into a separate texting application, it’s also an indicator that you’re not as protected--and neither are your clients--in your communication. While you should evaluate any VOIP provider before choosing it, most provide a free smartphone app for you and your clients to use. Each time you need to make a call, send a text or check a voicemail, you just log in--the app stores your client’s information so you can safely access it on your phone. VOIP text messaging also provides the ability to attach web links, documents, and scheduling requests easily, which is a bonus for many clinicians (stay tuned for a follow up article I’m writing about texting and compliance).

    Some clients may not want to download another app and they can choose to respond to your messages through regular means. If clients prefer to go that route, just have them agree to this in a disclaimer form, signed by new clients and updated annually. Members of NASW can contact the legal team for a copy of a template technology disclaimer if you’d like an example.  VOIP plans do not require any additional minutes, just data from their phone plan, unless they are connected to WiFi. I cannot speak for others when it comes to VOIP apps, but my own clients have found the Spruce app easy to use even when they were fairly new to smartphone technology.

    Regardless if you go with a VOIP provider or a traditional phone provider, here are some key questions to ask:

    1. Do you provide a free Business Associate Agreement that you and I both sign and date? Will a copy be provided to me?

    2. Will I be the only person with access to my data? Does this include deleting the data?

    3. If I put your app on my phone, will your app share data with other apps on my phone?

    4. Are voicemail messages, call logs, and text messages stored online? If so, is there firewall protection? How strong is the encryption?

    5. If my call log, voicemail messages or texts with clients are stored on my phone, how do you ensure that this data will be safe and accessible to only me in the event my phone is lost, damaged or stolen?

    6. How much does this cost monthly versus annually? Are there promotional codes or a referral reward program I could take advantage of to lower the cost?

    7. Is there a contract of service I sign with your company? If so, what penalties will I pay if I leave early?

    8. (If asking about VOIP) How large should my data plan be with my phone service provider if I will be using this service approximately ______ minutes a week/month?

    9. (If asking about VOIP) Can I be reimbursed if too many of my clients cannot use your technology because it isn’t compatible with their device (e.g. Apple’s IPad, Android tablets, Google Pixel phones)?

    This may seem like a lot of questions but it is important to make the most informed choice possible about compliant phone use and your practice. I would love to hear from members about other options they’re using for their phone and voicemail needs. In a digital era, this is a difficult time for us all but I truly believe we’re in it together. Stay tuned for future articles about compliance, ethics and different forms of technology, like email, blogging and texting! I use different forms of technology, including email, blogging, and texting in my own practice and have found them both useful and safe, but it took me some time to do the research. If you don’t have time to look into these things on your own, feel free to contact me for additional help and keep an eye out for my future training events. I’ve also added some links below for your future reference. Roger that! Over and out….

     Spruce on Phone Lines and Faxes and HIPAA:

    https://blog.sprucehealth.com/phone-lines-faxes-hipaa-oh-my/

     NASW, ASWB, CSWE, & CSWA Standards for Technology:

    https://www.socialworkers.org/includes/newIncludes/homepage/PRA-BRO-33617.TechStandards_FINAL_POSTING.pdf

     DOH HIPAA Security Series:

    https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/securityrule/techsafeguards.pdf?language=es


    Tiffany Chhuom, LSWAIC, CDPT, MPH, MSW is a member of the WSSCSW’s  Ethics Committee and owner of Lucy in the Sky Therapy. Her practice serves adults online and in the Yelm/Rainier area. She provides therapy while also working with clinics and healthcare systems to understand technology and compliance for clinical use. She continues to strengthen her training in trauma, addiction, disability, and adult giftedness.






  • September 23, 2018 2:15 PM | Emily Fell (Administrator)

    Are you a licensed social worker who is practicing without the kind of insurance policy that will cover the defense of your license?

    Social workers usually know they need to purchase liability insurance to protect against a lawsuit—that’s the insurance that you purchase for $1M/$3M or $2M/$4M—but there’s another type of insurance you also need to have. Equally important is the insurance to defend you from a “complaint” filed with the Department of Health (DOH) against your license. In fact, of the two types of actions, a “lawsuit” or a “complaint,” you are far more likely to encounter the DOH complaint—and yet that is the type of coverage many licensed social workers not only lack but don’t even realize they need.

    Insurance companies offer two types of policies: insurance for “lawsuit liability” and insurance for a DOH “complaint” or “license defense.” The first type is for coverage against a lawsuit, when a person sues you through the judicial court system. Again, that’s the $1M/$3M or $2M/$4M insurance and is imperative to carry.

    The second type of policy is for coverage of “license defense.” This insurance protects you if you have a DOH complaint against your license, which is not covered by the liability insurance for a lawsuit. License defense insurance may also cover expenses for subpoenas, which is a third important type of coverage to have that is usually included as a subset of the license defense coverage. For license defense (and subpoena) coverage, you usually have to buy a separate and additional rider on the lawsuit policy. Some companies do include a minimal amount with the liability coverage, but with the rider you may be able to purchase up to $150K for a relatively low price (some are about $75 annually). Read the fine print carefully: Some companies include subpoenas under this coverage, others don’t. Some companies allow you to choose your own attorney, others don’t.

    It’s important to think carefully about which company you choose for your insurance. The wrong choice could end up costing you tens of thousands of dollars in the end, or more!

    Here’s what you need to know: Not just “anybody” can file a lawsuit successfully. I won’t list all the details here, but for a person to be able to successfully sue you, they have to meet certain criteria: they have to show that you had a direct legal responsibility to them, that you breached it, and that you caused harm and damages. While a lawsuit is possible, the requirements make them infrequent.

    You are more likely to encounter a DOH complaint than a lawsuit because the DOH complaint is, simply put, easier to file. Whereas filing a lawsuit requires criteria explained above, the DOH complaint doesn’t. In fact, anyone can file a DOH complaint against a licensed social worker. A DOH complainant doesn’t have to have been your client, doesn’t have to have had any direct relationship to you, and doesn’t have to have been harmed by you. In fact, the complainant doesn’t even have to know you. There is no time limit, so the claim can be made years after a supposed event occurred. The complainant only has to suggest – not prove - to the DOH that you’ve done something that, if it were true, might pose a risk of harm to the public. Since the DOH mission is to protect the public, it will likely investigate. Even if the investigation is ultimately dismissed, you are required by law to respond to the complaint, and doing so can be time consuming, preoccupying, and highly distressing.

    The second reason a DOH complaint is more likely to occur than a lawsuit is that, even if the complainant wants to file a lawsuit, a good way to lay a foundation for the lawsuit is to first file a complaint. If the DOH decides the complaint is “founded,” that decision will lay the groundwork for the future lawsuit. When the DOH investigates, the cost of the investigation is paid by the State, so the complainant gets a lot of free work done by the DOH. Thus, even if a person were to sue, he or she would start by filing a DOH complaint against your license.

    Where do you fall in the spectrum of potential risk for a complaint? There are some social workers who are higher risk than others for a complaint: Social workers are at greater risk when they work with 1) children involved in custody cases, 2) children with disabilities, and 3) high conflict clients, couples, and families. Unfortunately, even excellent providers may have multiple complaints in a single year. The complicated dynamics involving custody cases, mandatory calls to Child Protective Services (CPS), and testing for school Individualized Education Plans (IEPs) may result in DOH involvement even when cases are ultimately dismissed. Without adequate coverage, providers may have to pay thousands in attorney’s fees; with the right coverage in sufficient amounts, providers’ costs may be zero when attorney’s fees are paid directly by the insurance companies.

    It is also important to consider whether you can choose your own attorney or if the insurance company wants you to use an attorney on their panel. Many social workers like to use an attorney they have already worked with or one that a colleague personally recommends when faced with this situation. Since the option to choose an attorney is offered at some insurance companies but not all, social workers need to also reflect on this need when selecting a policy. After all, it is his or her own license that is at stake.

    What can you do to protect yourself? Call your insurance company. Ask these questions regarding license defense, subpoena coverage, and choice of attorney:

    1) Do I have coverage for “license defense”? How much?

    2) Do I have coverage for a subpoena? How much?

    3) Can I choose my own attorney for a license defense?

    If you don’t have coverage or don’t have the full amount available, I suggest purchasing the highest amount possible, or at least the highest amount you can afford. If the cost is about as much as you might have to pay (or less) for an extra pair of shoes, I suggest purchasing the insurance rather than the extra pair of shoes. The amount is important--if the subpoena coverage is under $5,000–and I know of one company that only offers $400, which is certainly not enough—it may likely be inadequate if you are ever served a subpoena. Ideally, you will never have a complaint against you, and this will be the best $75 you spend just to be safe. It’s worth the peace of mind to know your license is adequately covered, you can afford to deal with a subpoena, and you can choose the attorney you want to help you through a DOH complaint, should one ever arise.

    Ultimately, I urge you to make sure your insurance covers you for license defense, subpoenas, and choosing your attorney for license defense. If you determine that you don’t have sufficient coverage, purchase it right away. If your current carrier does not offer what you need, consider switching to another carrier now or at the first opportunity. If you just renewed a policy that is insufficient, you may be able switch to another, cancel the first once the new policy is approved, and receive a pro-rated reimbursement. Even if you are an Associate level licensee working under a supervisor, or a licensee working at an agency, you are well-advised to have your own policy, should you and your agency or supervisor’s interests not be the same.

    Going through a DOH complaint is never pleasant, even under the best of circumstances where it is dismissed. It can be upsetting, embarrassing, and humiliating. Whether you work independently, under a supervisor, or at an agency, take advantage of your current complaint-free status to purchase the coverage that can save you future expense—you may be only one high-conflict client away from a complaint.

    If you have any questions, please feel free to contact me at fschopick@comcast.net or 425-891-3411. I give free consultations, and am happy to respond to your concerns.

    Frances Schopick, JD, MSW is an attorney with a strong background in Social Work and psychiatric research. She represents counselors who have DOH complaints against them. She also provides consultation for risk management, setting up disclosure forms for your practice, and witness prep for subpoenas and testimony in court.



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