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ETH2228 - SECTION 3: COMMON CODE VIOLATIONS AND LEGAL ISSUES IN SOCIAL WORK AND COUNSELING PRACTICE

Common Code of Ethics Violations

So that they may be able to avoid them themselves, social workers and counselors should be aware of the most common types of ethics violations.

Boundary Violations

In her article, Professional Boundaries: An Analysis of Violations by Social Workers, Strom-Gottfried reports (Strom-Gottfried, Kimberly, Professional Boundaries: An Analysis of Violations by Social Workers, Families in Society: The Journal of Contemporary Human Services, Volume 80, Number 5, 1999, Pages 439 – 449) that 56.1% of the cases in which there were ethical violations, there was some form of boundary infraction. Within these violations, 72.7% involved some form of sexual relationship or harassment or abuse; 52.3% of the boundary violations involved a dual relationship; and 47.6% had other boundary violations, including supplying drugs or alcohol to a client.

Non-boundary Violations

Strom-Gottfried found that of the cases with boundary violations, many of them had other non-boundary violations as well, such as: failure to get consultation, poor use of social work skills or knowledge, failure to refer or transfer, confidentiality breaches, prolonged or premature termination, fraudulent actions, poor record keeping, conflict of interest and insufficient training or incompetence.

Strom-Gottfried has also looked beyond professional boundary issues and done an analysis of NASW code violations between the years 1986 – 1997. In this analysis, boundary violations, both sexual and non-sexual rank first. The second largest category of violations involved poor practice, which included: failure to use accepted skills, premature termination, poor case transfer or referral, prolonged care, poor supervisory practices, use of unapproved techniques, failure to act, poor follow-through, no back-up coverage, and disputed diagnosis or intentional misdiagnosis.

In order of frequency, other code violations included: competence, record keeping, honesty, breach of confidentiality, informed consent, collegial violations, billing and conflicts of interest. (Strom-Gottfried, Kimberly, Ensuring Ethical Practice: An Examination of NASW Code Violations, 1986 – 97, Social Work, Volume 45, Number 3, May 2000, Pages 251 – 261)

Daley, in his article, Ethics Complaints in Social Work Practice: A Rural – Urban Comparison (Daley, Michael, Doughty, Michael, Journal of Social Work Values and Ethics, Vol. 3 No.2, 2006, http://www.socialworker.com/jswve) compared ethics violations between urban and rural social work practice in Texas and had results that were somewhat different than Strom-Gottfried.

Daley found that the largest category of ethics violations for both urban and rural social workers was poor practice. They define poor practice as: failure to meet accepted standards for client care such as evaluation of client progress, appropriate use of supervision, and making appropriate referrals. The second largest category for both was boundary violations. Although the rates for urban and rural social workers varied in each of the other categories of violations, other major categories included: conflicts of interest, honesty, confidentiality, competency, record keeping, informed consent and finally billing.

In their presentation of their Ethical Decision-Making Process, Steinman et al. list the following as four common professional ethics violations for the helping professions:

1. Dual relationships – sexual, social and financial relationships
2. Breaches of client confidentiality – usually because of carelessness
3. Providing treatment beyond the scope of professional competence
4. Failure to take appropriate steps to prevent a suicide attempt

(Steinman, Sarah, Richardson, Nan Franks and McEnroe, Tim, The Ethical Decision-Making Manual for Helping Professionals, Brooks/Cole Publishing Company, New York, 1998)

Review Questions

Historically, what is the most common violation of the NASW Code of Ethics?

What are some common non-boundary violations of the NASW Code of Ethics?

What type of cases are included in the “poor practice” category looked at by Strom-Gottfried?

Boundary Issues – When is a client no longer a client?

Many mental health clinicians live in communities or practice in settings where they must be particularly cognizant of how they relate to clients and former clients so as not to place themselves in a situation where they might raise concerns around dual relationships or boundary violations.

As mentioned previously, the majority of ethics complaints against social workers involved some sort of boundary violation issue. (Strom-Gottfried, 1999 and 2000) This is generally the case for all mental health clinicians.

For the purpose of this discussion, since it is sometimes easier to identify boundary issues as they relate to current clients, we will consider former clients as those lines can get a bit blurry. To be truly safe from any violations of the NASW Code of Ethics, social workers must be able to answer the question: When is a client no longer a client?

For an answer to this question the first place that any social worker should turn is to the NASW Code of Ethics. Not only is the NASW Code of Ethics the document that guides the social work profession, but in many states it has legal standing in that rules covering disciplinary procedures, incompetence and misconduct will actually incorporate the NASW Code of Ethics.

Several provisions of the Code provide some guidance to the answer of the question: When is a client no longer a client?

1.01 Commitment to Clients
Social workers' primary responsibility is to promote the well-being of clients. In general, clients' interests are primary.

1.06 Conflicts of Interest
(a) Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients' interests primary and protects clients' interests to the greatest extent possible. In some cases, protecting the clients' interests may require termination of the professional relationship with proper referral of the client.

(c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there are risks of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.)

1.09 Sexual Relationships
(c) Social workers should not engage in sexual activities or sexual contact with former clients because of the potential harm to the client. If social workers engage in conduct contrary to this prohibition or claim that an exception to this prohibition is warranted because of extraordinary circumstances, it is the social workers - not their clients - who assume the full burden of demonstrating that the former client has not been exploited, coerced, or manipulated, intentionally or unintentionally.

4.03 Private Conduct
Social workers should not permit their private conduct to interfere with their ability to fulfill their professional responsibilities.

For licensed counselors, this issue is covered in the ACA code of ethics under Standard of Practice Three (SP-3): Dual Relationships. Counselors must make every effort to avoid dual relationships with clients that could impair their professional judgment or increase the risk of harm to clients. When a dual relationship cannot be avoided, counselors must take appropriate steps to ensure that judgment is not impaired and that no exploitation occurs. (See A.6.a. and A.6.b.)

With regard to romantic or sexual relationships with clients, ACA puts forth Standard of Practice Four (SP-4): Sexual Intimacies With Clients. Counselors must not engage in any type of sexual intimacies with current clients and must not engage in sexual intimacies with former clients within a minimum of 2 years after terminating the counseling relationship. Counselors who engage in such relationship after 2 years following termination have the responsibility to examine and document thoroughly that such relations did not have an exploitative nature.

The AAMFT code covers these same concerns with the following sections:

1.3 Marriage and family therapists are aware of their influential positions with respect to clients, and they avoid exploiting the trust and dependency of such persons. Therapists, therefore, make every effort to avoid conditions and multiple relationships with clients that could impair professional judgment or increase the risk of exploitation. Such relationships include, but are not limited to, business or close personal relationships with a client or the client’s immediate family. When the risk of impairment or exploitation exists due to conditions or multiple roles, therapists take appropriate precautions.

1.4 Sexual intimacy with clients is prohibited.

1.5 Sexual intimacy with former clients is likely to be harmful and is therefore prohibited for two years following the termination of therapy or last professional contact. In an effort to avoid exploiting the trust and dependency of clients, marriage and family therapists should not engage in sexual intimacy with former clients after the two years following termination or last professional contact. Should therapists engage in sexual intimacy with former clients following two years after termination or last professional contact, the burden shifts to the therapist to demonstrate that there has been no exploitation or injury to the former client or to the client’s immediate family.

Please note that while both the ACA code of ethics and the AAMFT code of ethics specify a length of time before clinicians may enter into a romantic relationship with a former client, the NASW Code of Ethics takes a more strongly worded position, noting that there must be "extraordinary circumstances" that would warrant such a boundary violation. In the social work view of things, "once a client, always a client." All three codes of ethics are clear that the burden of proof rests with the clinician concerning avoiding exploitation of the client.

In addition to the NASW Code of Ethics, there might also be agency policies or practices that apply to how employees should or should not relate to clients and if so, the Code also states that they should adhere to those policies:


3.09 Commitment to Employers
(a) Social workers generally should adhere to employing agencies' policies and procedures and the efficiency and effectiveness of their services.

A good resource for mental health clinicians struggling with any boundary issue is: At Personal Risk, by Marilyn Peterson (WW Norton and Co., New York, 1992). She suggests that boundary violations should be looked at in terms of their context and not content. She goes on to state that if just content is considered, than early warning signs are ignored, violations that are less egregious are normalized and dismissed and by just considering the content, the harm to the professional/client relationship is ignored. The result is that the professional is not consciously aware that they are committing a violation until much further along in their work with the client.

Ms. Peterson suggests the following actions to help prevent a violation or to correct a situation:
- take charge, guide the client and define the relationship,
- accept responsibility for having greater power, submerge your own needs and use the power only within the context of the professional/client relationship, and
- always place the client’s needs first.

For more information and direction on boundary issues and dual relationships, you may wish to examine the following resources:

Goldstein, Howard, On Boundaries, Families in Society: The Journal of Contemporary Human Services, Volume 80, Number 5, 1999, page 435
Peterson, Marilyn A., At Personal Risk: Boundary Violations in Professional-Client Relationships, W. W. Norton & Company, New York, 1992
Reamer, Frederic, G., Boundary Issues in Social Work: Managed Dual Relationships, Social Work, Volume 48, Number 1, January 2003, pages 121-133
Reamer, Frederic, G., Tangled Relationships, Columbia University Press, NY, 2001
Srinika, Jayaratne, Croxton, Tom and Mattison, Debra, Social Work Professional Standards: An Exploratory Study, Social Work, V. 42, No. 2, March 1997, Pages 187 - 199
Steinman, Sarah, Richardson, Nan Franks and McEnroe, Tim, The Ethical Decision-Making Manual for Helping Professionals, Brooks/Cole Publishing Company, New York, 1998
Strom-Gottfried, Kimberly, Ensuring Ethical Practice: An Examination of NASW Code Violations, 1986 – 97, Social Work, Volume 45, Number 3, May 2000, Pages 251 – 261
Strom-Gottfried, Kimberly, Understanding Adjudications: Origins, Targets, and Outcomes of Ethics Complaints, Social Work, V. 48, No. 1, January 2003, Pages 85 - 94
Strom-Gottfried, Kimberly, Professional Boundaries: An Analysis of Violations by Social Workers, Families in Society: The Journal of Contemporary Human Services, Volume 80, Number 5, 1999, Pages 439 – 449

Boundary SCENARIO I

Fred’s Family Trip

An elderly man, Fred, has been seeing a social worker, Mary, for his depression. In addition to working at the counseling center, Mary also works as a personal tour guide, arranging trips and accompanying small groups to different European countries. Fred sees a brochure for the social worker’s tour guide services at the counseling center and he takes one. He shares the brochure with his son, Dave, who wants to take a trip to Italy with his two sons, Fred’s grandchildren. Dave contacts and hires Mary and she arranges a trip. Dave is unaware that his father is seeing Mary. Several weeks before the trip one of Dave’s sons breaks his leg and so he is unable to go. Dave asks his father to come. For Fred this would be the trip of a lifetime so he very quickly agrees. Dave too is very happy because he thinks the trip will help lift his father’s spirits. Dave calls Mary, but must leave a message about his son’s broken leg and that his father, Fred, will be joining the trip.

What is the ethical dilemma?

The ethical dilemma that Mary faces may be stated as follows:
How does Mary manage the dual relationship that she has with Fred in order to minimize the impact of her ability to meet her professional obligations to him?


What are the ethical standards (codes), laws or cases that apply?

Depending on whether or not you are a social worker, a counselor or a family and marriage therapist, the professional code that applies to your profession sets the standard for behavior in this situation. Listed below are the parts of the codes that could apply. Laws governing contractual arrangements may also apply in this situation because of the contract that Mary has with Dave to provide the services related to the trip. This would also include the obligations spelled out in the contract.

How might the different codes treat this dual relationship?

Of the three codes reviewed in this course, the ACA Code of Ethics recognizes the possibility that a nonprofessional relationship may be beneficial to a client.

In section A5d, the ACA Code requires that once a counselor has a nonprofessional relationship with a client that may be potentially beneficial, “the counselor must document in case records, prior to the interaction (when feasible), the rationale for such an interaction, the potential benefit, and anticipated consequences for the client or former client. Such interactions should be initiated with appropriate client consent. Where unintentional harm occurs to the client or former client, or to an individual significantly involved with the client or former client, due to the nonprofessional interaction, the counselor must show evidence of an attempt to remedy such harm.”

The AAMFT Code is much more straightforward and discusses what is not allowable. In section 1.7 it states: “Marriage and family therapists do not use their professional relationships with clients to further their own interests.” And in 3.4 states: “Marriage and family therapists do not provide services that create a conflict of interest that may impair work performance or clinical judgment.” And in 3.9: “Marriage and family therapists do not engage in the exploitation of clients…” The AAMFT does not consider its Code of Ethics as exhaustive and so someone in Mary’s situation might, as the AAMFT suggests, seek advice from a supervisor or other appropriate person on how to make sure that their clinical judgment is not impaired and that they are not exploiting the client.

The NASW Code of Ethics, in section 1.06 (c) states that: “In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.”

Whether a counselor, social worker, or marriage and family therapist, all codes make it clear that the client’s interests are primary, and it is up to the professional to make sure the dual relationship neither takes advantage of nor harms the client.

NASW Code of Ethics
1.01 Commitment to Clients
1.02 Self-determination
1.06 Conflicts of Interest (a) (b) (c)
1.07 Privacy and Confidentiality (b) (c) (d) (e) (i)
1.16 Termination of Services (a) (b) (d) (e)
2.05 Consultation (a) (b) (c)
2.06 Referral for Services (a) (b)
3.09 Commitments to Employers (a) (b)
4.03 Private Conduct
5.01 Integrity of the Profession (a)

AAMFT Code of Ethics Provisions that Apply
(Please link to the AAMFT Code of Ethics for the specifics of the identified sections of the Code that apply – AAMFT Code of Ethics) 1.1, 1.2, 1.3, 1.7, 1.10, 1.11, 2.1, 2.2, 3.4, 3.9

ACA Code of Ethics Provisions that Apply
(Please link to the ACA Code of Ethics for the specifics of the identified sections of the Code that apply – ACA Code of Ethics) A1a, A5c, A5d, A11d, B1c

Review Questions

Why is it important to look beyond the content of a boundary violation?

What does the NASW Code of Ethics say about relationships with former clients?

If a boundary violation has occurred, what are some steps to take to correct the situation or minimize the impact?

Boundary SCENARIO II

A Faculty Affair

You are an adjunct faculty member at a BSW (or counseling) program in a school in a small town. You become aware that a tenured faculty member is in a relationship with a student she previously taught in a class. The student is not currently enrolled in any of the faculty member’s classes. You are aware of the student’s interests in attending graduate school, possibly the masters’ program at your own school and the faculty member could be called upon to write letters of recommendation for the student. The faculty member also teaches several graduate courses in this program, at least one of which is a required course for all students. What do you do?

What is the ethical violation or dilemma?

Is there an ethical issue when a faculty member has a relationship with a former student if there could potentially be a faculty-student relationship in the future?

Who should be involved in addressing this potential ethical issue?

In attempting to address any ethical problem, it is important that the right people are involved at the right time in the ethical decision making process. This may include those people who are directly affected by the issue or the decision that will be made, such as the student or client or the client’s family. This could also include supervisors or others within an organization who have the authority to make decisions that could help resolve the issue. The worker’s professional association may also be concerned about how the final decision to be made will affect the practice of the profession.

Engaging in the decision making process could also be challenging in an organizational setting where the social worker/counselor is removed from the process, despite their direct involvement with a client. For example, in a nonprofit agency, policies about the services that may be offered are often made at the board level.

In the above scenario, at different times in the process, it may be appropriate to involve: the other faculty member, the student, the head of the department, human resources, the licensing board and other faculty members.

What are the ethical standards (codes) that apply?

If a code of ethics clearly states that an action is prohibited, then the behavior that has occurred is wrong. If there are provisions that conflict with each other within a code, then an ethical dilemma exists, and it then needs to be resolved.

NASW Code of Ethics
1.01 Commitment to Clients
1.06 Conflicts of Interest (a) (b) (c)
2.01 Respect (a) (b) (c)
2.05 Consultation (a)
2.07 Sexual Relationships (a) (b)
2.08 Sexual Harassment
2.11 Unethical Conduct of Colleagues (a) (b) (c) (d)
3.01 Supervision and Consultation (c) (d)
3.02 Education and Training (a) (d)
3.03 Performance Evaluation
3.09 Commitments to Employers (a) (c)
4.03 Private Conduct
4.04 Dishonesty, Fraud and Deception
5.01 Integrity of the Profession (a)

AAMFT Code of Ethics Provisions that Apply
(Please link to the AAMFT Code of Ethics for the specifics of the identified sections of the Code that apply – AAMFT Code of Ethics) 4.1, 4.3, 4.6

ACA Code of Ethics Provisions that Apply
(Please link to the ACA Code of Ethics for the specifics of the identified sections of the Code that apply – ACA Code of Ethics) A5a – A5d, C2e, C6a, C6d, f3a, F3b, F3c, F3e, F4a-d, F5a, F7a, F8a, F9a, F9b, F10a – f, H2a - H2c

General Legal Issues Affecting Social Work and Counseling Practice

There are various state and federal laws and regulations that govern mental health clinicians and their practice. This includes not only those that specifically govern the counseling professions, but also those that apply more broadly - such as those concerning the treatment of medical information, reporting child or elder abuse, or the providing of treatment to minors - to which social workers, marriage and family therapists, and counselors must adhere.

Consequences for a mental health clinician who is not in compliance with these laws and regulations may include not only the penalties associated with each specific law, but also loss of their license, employment and ability to practice their profession. Therefore it is essential that mental health clinicians are familiar with all state laws and regulations that govern their practice.

There are also federal laws that apply in every jurisdiction, and it is important for mental health clinicians to understand how these federal laws relate to laws in their state. In some instances, for example, regarding the treatment of medical information, a state law may be seen as offering greater protections than the Health Information Portability and Accountability Act (HIPAA), so some aspects of the state law may supersede the federal law.

The following is a discussion of the basic or more common laws governing social workers, counselors, and marriage and family therapists, or potential legal issues that the professionals may encounter. This information should not be considered comprehensive and in no way should be considered legal advice.

The Regulation of Social Work Practice

Each state has a board that regulates the practice of social work in that state. The Association of Social Work Boards (ASWB) is the association of these boards and is available to help individual social workers and social work students with questions they may have about licensing and the social work examinations.

ASWB has compiled data on social work laws and regulation throughout the U.S. and Canada. This information, which is available online (www.aswb.org) includes: the levels of practice regulated, experience and supervision requirements, continuing education requirements, definitions of social work practice, and summaries of individual jurisdiction laws. It is the responsibility of individual social workers to be familiar with and in compliance with the laws and regulations in their state or province. The ASWB can be useful as an initial reference site or for summary information about a state, but each jurisdiction’s board should be consulted for specific details.

ACA and AAMFT

Regarding the licensing of counselors and marriage and family therapists, there is a great deal more variation amongst the states in terms of how they are regulated. Familiarity with the laws and regulations governing counseling and marriage and family therapists in the state in which someone wants to practice is one of the first steps to establishing a practice in that state.

Duty to Warn

Tarasoff vs. the Regents of the University of California is a landmark case that has set a standard for when a therapist must break confidentiality in order to warn someone about a potential harm. Many states have incorporated Tarasoff into their statutes while others have applied it through court decisions. Regardless of how a state has incorporated Tarasoff into its standards for practice, and however the courts in that state have interpreted the standard, social workers, counselors and marriage and family therapists must know when they can and cannot breach confidentiality because of a duty to warn someone who may be in danger.

Tarasoff involved a landmark California case in which a therapist was ruled to have had the duty to inform a young woman about threats which had been made by one of the therapist’s patients. The therapist had been concerned with the patient's intentions to harm this woman.

The upshot of this case is that medical and mental health professionals are now both allowed and required to disclose such information as is needed to warn the third person about the threat expressed by the patient, even without the consent of or over the direct objection of the patient. “Duty to Warn” creates a duty for providers to alert authorities and warn a third person of an imminent, serious risk of bodily injury. It also provides the defense to any potential lawsuit brought against the practitioner by the client for breach of confidentiality.

The particular facts and circumstances of each case may need to be examined, but generally health care information may be disclosed without the patient’s authorization to appropriate persons when a health care provider providing diagnosis, treatment or care to the individual has determined, based on reasonable professional judgment, that the individual poses a direct threat of imminent harm to the health or safety of any individual.

The disclosure must, to the extent possible, protect the confidentiality of the health care information, consistent with sound professional judgment. Given the different court interpretations or legislative language that may exist from state to state about what constitutes a direct threat or imminent harm, it is essential that social workers know how “Duty to Warn” is interpreted and applied in their state.

SCENARIO

Conflicting Professional Codes

You are a licensed mental health clinician who has just been hired to establish and work in a new project of a legal aid organization which will be providing counseling and legal services to homeless people. This integrated approach has great potential for preventing homelessness, by getting at some of the root causes such as mental illness and substance abuse, but you are concerned about the conflicting legal and ethical obligations of mental health clinicians versus those of the lawyers and the others in the office that fall under the lawyers’ standards.

As a licensed mental health clinician, you are a mandated reporter regarding instances of child abuse. The lawyers, paralegals and other staff that work for the project fall under the lawyers’ ethical obligations to their clients to keep confidential any information they receive.

Identify the ethical dilemma
How do you reconcile conflicting legal and ethical obligations of different professionals who work together serving the same group of clients?

What are the ethical standards (codes), laws or cases that apply?

In addition to the provision in the NASW, AAMFT and ACA codes of ethics listed below, the Code of Ethics of the American Bar Association and any state laws governing the practice of law must be taken into consideration and conflicts between the ethical obligations of the professions should be identified. For example, social workers, marriage and family therapists, or counselors will likely be considered mandated reporters of abuse whereas lawyers and others working under the direction of a lawyer would be required to maintain confidentiality regarding the client’s information. There may also be agency policies that provide direction.

In a recent Legal Issue of the Month, Legal and Ethical issues in Social Work – Lawyer Collaborations (January 2008) regarding social worker and lawyer collaborations, NASW states:

“As social workers enter into formal relationships with lawyers they should anticipate the need to address potential conflicts in child abuse reporting in a proactive manner, prior to the existence of a problematic situation. Social workers should be familiar with any ethics or legal opinions in their state that address these issues, and discuss with potential lawyer employers the most workable model of representation to serve clients' needs and preserve the professional obligations of both social workers and lawyers. Interdisciplinary law clinics within a state may also provide a useful resource for analyzing the conflicting confidentiality and reporting obligations of social workers who routinely collaborate with lawyers. A clear understanding of the social workers' role as legal team consultant, employee or direct service provider to the client is key to analyzing the potential legal and ethical conflicts between the lawyers' and social workers' respective professional obligations regarding the mandated reporting of abuse.” (Retrieved 2/3/08, www.naswdc.org/ - member section)

NASW Code of Ethics

1.01 Commitment to Clients
1.02 Self-determination
1.03 Informed Consent (a)
1.06 Conflicts of Interest (a)
1.07 Privacy and Confidentiality (a) (b) (c) (d)
1.14 Clients Who Lack Decision-Making Capacity
1.16 Termination of Services (c) (e)
2.01 Respect (a) (c)
2.02 Confidentiality
2.03 Interdisciplinary Collaboration (a) (b)
3.06 Client Transfer (a)
3.09 Commitments to Employers (a) (b) (c) (d)
5.01 Integrity of the Profession (a)
5.02 Evaluation and Research (a)

AAMFT Code of Ethics Provisions that Apply
(Please link to the AAMFT Code of Ethics for the specifics of the identified sections of the Code that apply – AAMFT Code of Ethics) 1.1, 1.2, 1.6, 1.13, 2.1, 2.2, 2.6, 3.2, 3.4, 3.14, 6.1

ACA Code of Ethics Provisions that Apply
(Please link to the ACA Code of Ethics for the specifics of the identified sections of the Code that apply – ACA Code of Ethics) A1a, A2a, B1b, B1c, B1d, B2a, B2c, B2d, B3b, B8a, B8c, C2e, D1a – D1e, D1g

Federal Laws Impacting Social Workers and Counselors

Health Information Portability and Accountability Act (HIPAA) Privacy Standards (45 CFR, Subtitle A, Subchapter C)

Federal standards for confidentiality and privacy of Protected Health Information (PHI) and the rights of patients to control access to their PHI applies to “covered entities” who are health care providers and who transmit any health information in electronic form in connection with a transaction covered by HIPAA. It also applies to health plans and clearinghouses.

HIPAA generally permits disclosure of PHI without patient authorization for purposes of treatment, payment or health care operation. The standards define other specific uses and disclosures of PHI for which authorization is not needed, such as public health activities, disclosures about victims of abuse, neglect or domestic violence, law enforcement or to avert a serious threat to health or safety.

Typically, federal law will trump state law. HIPAA, however, is an exception in that it allows state laws that provide stronger confidentiality protection to take priority over the federal HIPAA law. For example, some states may have laws that provide for greater confidentiality protection for mental health records and the release of those records. States may also offer greater protection for the treatment of information related to HIV testing or status. To be sure they are in compliance, social workers, counselors and marriage and family therapists should find out if, and in what areas, their state provides greater confidentiality protection for protected health information.

Substance Abuse Diagnosis and Treatment Federal Law, (42 CFR Part 2)

This federal law controls confidentiality of all diagnosis and treatment information regarding substance abuse, and makes substance abuse treatment information among the most significantly protected type of health information. Federal rules establish that this information is “super-confidential” and requires specific authorization in order for the information to be disclosed. Any court order to produce such records must take into account the super-confidential status of this information and determine whether statutory standards for disclosure of the information have been satisfied.

Family Educational Rights and Privacy Act (FERPA), Confidentiality of School Records, (20 USC §1232g; 34 CFR Part 99)

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the US Department of Education. FERPA gives parents certain rights with respect to their children’s education records.

These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are “eligible students.” Although there are exceptions, generally schools must have written permission from the parent or eligible student in order to release any information from the student’s education record.

Amongst others, those exceptions which might relate to a social worker’s work with a student include: compliance with a judicial order or lawfully issued subpoena; to appropriate officials in cases of health and safety emergencies; and, state and local authorities, within a juvenile justice system, pursuant to a specific state law.

Review Questions

Why must social workers be familiar with federal and state laws that affect social work practice?

Who is an “eligible student” under FERPA?

What does “super confidential” mean and to what type of records does it apply?

What are the general requirements for release of confidential information under “Duty to Warn?”

 

 

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