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Sandra Paulsen, Ph.D.

The concept of working intensively in psychotherapy is not new. For many years, some clients would travel to clinical experts to work for several days and then return to their home location. Two prominent examples, John G and Helen Watkins, the founders of ego state therapy, successfully used this method for years working primarily with mental health professionals. In contemporary times, with the ease of air travel, and communication, many people become aware that specific specialty practices exist in geographically remote locations, and seek to use them using the intensive format. However, there is little guidance in training about how to appropriately conduct intensive work, or what the hazards might be and how to avoid them.   For EMDR practitioners, the risks and benefits may be amplified. Benefits that can accrue are that one can now get time efficient treatment for early trauma held in implicit memory, in combination with access to expertise such special skill sets as ego state therapy, EMDR, and somatic interventions, among others. Some of the risks are discussed below, as are suggestions for mitigating those risks.

How Your Personal Assets May Be In Danger Regardless Of What Business Form You May Use For Your Practice

A. Steven Frankel, Ph.D., J.D.

Some of you have asked me to comment on whether a professional practice that has incorporated or which has been formed as a “Limited Liability Company” (LLC) will protect the owner(s) from exposure to liability if a service recipient files a claim for having been harmed.  

THE GENERAL ANSWER IS: NO!!  - A ”CORPORATE VEIL” OR LLCii  TYPE OF BUSINESS ORGANIZATION WILL NOT PROTECT THE SHAREHOLDERS OF THESE TYPES OF BUSINESS ORGANIZATIONS.

Case law clearly shows that when a corporation or LLC   is small (in the sense that there are few shareholders), courts have held that there is no difference between the acts of the corporation/LLC and the acts of the individual shareholders, so the corporate veil that protects the personal assets of large corporations/LLCS is “pierced,” such that the personal assets of small corporations or LLCs are not protected by the business organization.

Further, case law shows that, when the corporation or LLC committed fraud, or has failed to follow business formalities (e.g., meetings, minutes, enforcement of by-laws, etc.), was not adequately capitalized (didn’t have enough funds) for it to function as a business, or where the assets of the business and the shareholders were comingled (such that the income to the business purchased personal things for the shareholders, as an example), the veil that protects the personal assets of the shareholders may be pierced, such that their personal assets may be at risk for the debts of the business.

So how should you protect your personal assets from the risk of actions against your professional business, regardless of which business form you use?  Insurance protection is the answer.  Contact your malpractice carrier for information about how to protect yourself, regardless of which mental health profession is yours, and regardless of whether you are operating as a “coach” rather than a licensed mental health professional.

iiA quick side issue:  In some states (like California), LLCs are not listed as a business form available to health care professionals.  The approved business forms are: sole proprietorship, partnership, group practice and professional corporation.  Check with your state association, licensing board or health care attorney for more information about your jurisdiction.

For more information, go to: 
http://www.nolo.com/legal-encyclopedia/personal-liability-piercing-corporate-veil-33006.html

Thinking of Converting Your Paper Files to Electronic Files?

 By: A. Steven Frankel, Ph.D., J.D.

Within the past year, I have had three California mental health professional
legal clients who have found themselves facing licensing board Citations and Fines
of $1,000.00 because of two facts:

1. They personally scanned hundreds of pages of patient/client records
into computers, then shredding those files; and
2. They had patients/clients who filed complaints against them with
their licensing board because the scanned files were corrupted and
unavailable when they requested copies.
So, what are the issues here?

First citations and fines are ways for licensing boards to make money when
licentiates make mistakes or errors that are relatively minor, like administrative
errors. Here's an example: you have a student who is registered as an "MFT intern"
or a "CSW Associate" or a "Psychological Assistant," and, when it comes time for
their registration to be renewed, you have them write a check for the renewal fee
instead of writing the check from your own account. Citations with fines are not
considered formal "discipline," and this will not raise your malpractice insurance
rates, although they are "blemishes" on your record, remaining on the licensing
board's website for years and available to be viewed by anyone with a computer
who goes to your board's website looks up your listing.

Second, when it comes to records, licentiates are responsible for the
maintenance and retention of patient/client records. And, while we all know that
bad things can happen (e.g., floods, fire, theft, computer viruses, etc.), we are held
responsible when, even given our best efforts, files are destroyed, misplaced,
corrupted, etc. When such events happen and our licensing boards are informed of
these happenings, they routinely issue a citation and fine (figure $1,000.00).

So, I'm writing this because, in the past year, three of my legal clients have
faced such consequences because they decided to switch from paper records to
computerized records, implementing that decision by doing the scanning of the
records themselves and then destroying the original paper records prior to ensuring
that the records had been successfully scanned AND BACKED UP. In all three cases,
patients/clients happened to make requests for their records, only to discover that
the records no longer existed. Complaints were filed with licensing boards,
resulting in citations and fines. So:

PLEASE: if you decide to convert to electronic records, ensure that the
scanning was effective and, before destroying the paper records, make absolutely
sure that the scanned records are both on your computer AND on a backup device, and that the back-up device is kept in a location separate from the computer.

Three of my Legal Clients Have Had Briefcases With Patient/Client Records Stolen From Their Cars. 

By: A. Steven Frankel, Ph.D., J.D.

California law now requires that, when records are stolen, regardless of whether the theft is from our offices or our cars, we must report these events to the patients/clients whose records were taken.

I have had three legal clients whose cars were broken into while parked on public city streets in California cities. They had left the records in briefcases or boxes in their cars. The cars were broken into (smashed windows, typically). It appears that the break-ins were by people looking for cell phones, computers and other potentially re-sellable and valuable products.

So, if you are transporting anything at all in your car and you intend to park your car before removing whatever you are transporting, please place everything in the trunk of the car – do not leave anything that don't want taken in your car, visible from outside the car, under any circumstances.

Further, should you happen to have a car broken into and files stolen, you have to do two things:

1. File a police report; and
2. Notify anyone whose files were stolen. Inform them of the theft and the fact of your having made a police report. Express your regrets and never do that again.

Notes:

The California data breach notification law, effective July 1, 2003, (California Codes §1798.80, et seq.) is one of the first of such statutes in the United States, and the one that other states and Congress have considered in the drafting of similar legislation. The California data breach notification law defines "personal information" to mean"any information that identifies, relates to, describes, or is capable of being associated with, a particular individual, including, but not limited to, his or her name, signature, social security number, physical characteristics or description, address, telephone number, passport number, driver's license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information."

For purposes of triggering a data breach notification, personal information in the California law means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted:
• Social Security number
• Driver's license number or state identification card number
• Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account

Personal information under this section of the California statute does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

 

            Worried about reviews on opinion websites like Yelp?  

                           By A. Steven Frankel, Ph.D., J.D.

I've had more than an earful of phone calls from mental health professionals who had patients/clients who wrote negative (to put it mildly) reviews of the care they received on opinion websites. The clinicians who called me wanted to find ways to get those reviews (distortions, misperceptions and outright lies) off of the internet.

It's not easy to get such reviews taken down. One legal client's review was also sent by the patient/client to the clinician's licensing board. That part was easy to deal with because my client kept really good records and the board summarily closed the investigation. I then sent a copy of the board's letter to the opinion website (deleting the name of the complainant, of course), and demanded that the post be removed from the website.

After several months, an officer of the website sent me a letter, stating that only if my client sued the complainant for defamation (saying false things about him/her) AND WON THE SUIT, they would take it down. Not a chance, as defamation suits are really hard to win, especially here in California. The reason is that there is a domain of law called SLAPP/Anti SLAPP that pertains to statements made for "public protection" and which protect free speech, to a fault. (I have both won and lost cases of defamation because of this body of law. One of the losses involved a report to a licensing board by an agency that revoked a contract with a mental health professional, based on blatant lies about her. A report to her licensing board (required by law when privileges are negatively modified) contained these lies, but the court held that this was protected speech.)

My client took a deep breath and reminded himself/herself of the old adage about "sticks and stones..." and went on with his/her life. Others I have heard from remembered Lee Marvin's (and scores of others') response to not-nice things said about him when his long-term partner filed a "palimony" suit against him (I paraphrase): "Say whatever you want about me, as long as you spell my name right."

Recently, a client of mine was very upset about information posted about her/him on the internet that s/he contacted a well-known company that claims to solve such problems by evaluating the negative posting(s) and arranging for a lot of positive postings to be placed on the website, thus burying the negative one(s), so that readers stop reading before they get to the negative ones. But they charged my client $5,000.00 just for doing the evaluation!!

A few weeks ago, I attended the annual convention of the California Psychological Association in Monterey. There, I stopped at a display table at which Keely Kolmes, Psy.D. Some of my readers may already know that Dr. Kolmes has made quite a contribution to our field by teaching about the interface between ethics, professionalism and social networking. Among her contributions is the creation of a means of responding to negative PR. She has researched the issues that patients/clients are most concerned about as regards their treating clinicians and has formulated a questionnaire that taps the responses of patients/clients who have terminated with their treaters and who has provided them with the questionnaire. They then, anonymously, send their responses to Dr. Kolmes, who summarizes them and provides them to the referring clinician for possible posting on opinion websites. In essence, the clinicians are able to show that their actual patient/client population actually evaluates them as the data reflect (assuming that the data are actually favorable ), such that negative evaluations are anomalous and not reflective of the clinican's outcomes.

Like it?? Try it. For a modest fee, Dr. Kolmes can get you set up. See her posting at http://drkkolmes.com/2012/11/05/yelp-proof-your-practice-alpha-launch> 

 

A. Steven Frankel, PhD, JD, ABPPIn the late ‘90s, I went through two transitions.  The first was law school, which I started in ’97, and the second had to do with forensic practice.  Between the late ‘70s, when I realized that my clinical practice was strong and satisfying, until the late ‘80s, when I grew increasingly resentful of the incursion of managed care into the mental health system (I trained to be a “professional” – not “labor”), I was very happy in my work as a treater.  I had little contact with the forensic world and that was actually quite ok with me, as the hassles of dealing with the adversarial world of forensics seemed too much to pull me in that direction.

As I went through law school and thought about the kinds of legal work I might do on graduation, one area of interest was forensics, as I thought I might need to retain forensic specialists to work as experts on my legal cases.  I realized that the world of forensics seemed to be growing exponentially while my attentions were elsewhere, so I decided to travel to San Diego for a weekend workshop series offered by the American Board of Forensic Psychology (ABFP).

That weekend blew my mind away.  First, I ran into people I had known years earlier when I was a full time faculty member at USC.  Those were wonderful reunions.  Second, I felt like I walked into a time warp.  The presenters and attendees were speaking an “ancient” language – one I hadn’t heard spoken in many years – I had learned it as a graduate student at Indiana University back in the mid-60s.  It was the language of empirical psychology,  These folks spoke it, lived it and breathed it.  I was transported 30 years into the past.  And, with all due respect, I became aware that the attitudes of academic clinical psychologists I encountered in my training (often less-than-subtle snobbery, devaluing of practicing clinicians) were manifest among those who populated the forensic world,

Gutheil, J., & Brodsky, S. (2008).
Preventing Boundary Violations in Clinical Practice. Guilford Press.

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC

 

 

 

Get this book!  Read it too – don’t just let it sit on your shelf.  While I’m sure that the last thing you want to do is to curl up in bed with a book on boundary issues in clinical practice, I actually have to do just that.  Many times, I loathe and detest those experiences, but not with this book.  This is the boundary book for grown-ups.  A comprehensive (in about 300 pages) review of the whys/wherefores and how-to’s/how not to’s of boundaries.  This is a mature and thoughtful piece, acknowledging, for example, that regulatory boards tend to be more than just a few “jnd’s” (just noticeable differences, for those of you who may have forgotten your intro psych courses) more rigid than the mainstream of mental health professionals.  Another example of the authors’ thoughtfulness and flexibility concerns the acknowledgement that personal disclosures by clinicians who treat childhood trauma survivors might be a bit more revealing than with, say, uncomplicated anxiety or depression spectrum disorders, because childhood trauma survivors have experienced people who have represented themselves in ways that belie the truth about them and patients/clients may need to know that clinicians are who they say they are.  I give it an A+!!

The Ethics Requirement That No One Wants (and Many Are Unable) to Face: The Solutions

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC


 

The Easiest (but, thus far, Ineffective) Solutions:

A. Do-it-yourself

At first blush, the most reasonable implementation of the professional society ethics codes requiring us to prepare for unanticipated terminations of practice, due to death or disability, is to find a colleague who’s willing to make an agreement that s/he will take care of the ministerial functions required to close a practice and transfer patients/clients and their files when needed. Such agreements would necessitate some risk (in the sense that there’s no way to predict which colleague will need the services first) and would require that you thoroughly acquaint the colleague with your practice, provide lists of the best people to refer your patients/clients when the time comes, how to access the files, how to know which patients/clients are/aren’t currently being seen (and thus be able to determine which are in need of being contacted right away), what the accounts payable and receivable look like, where the office lease is, how to arrange for the phone company to forward calls to the helping colleague, and on, and on...

I have advocated that colleagues who make these kinds of deals with each other also take out a term life policy of $10,000 to $20,000, naming each other as beneficiaries, because of the enormous time and effort needed to take on the closing of a colleague’s practice.

As may not surprise you, colleagues consistently report that they cannot find others who are willing to make these types of deals.

B. Let your county professional society do it for you:

One might think, given that the ethics codes that require us to prepare for such circumstances are easily a decade old, that local professional societies (e.g., your local friendly county professional association) would have warmed to this problem. After all, given that there's any truth to the nasty rumor that county professional societies are suffering from acute Loss Of Membership Syndrome (that's a "V-code," in case you were wondering) in these hard economic times, you might think that this problem would be the secret to their rehabilitation and success. After all, county professional societies have the most direct contact with the "rank and file" professionals in their jurisdictions, and might actually be able to get a hefty fee from new and old members if they could provide a practice closing service for members. Are they doing it? Hardly.


Humbly, SFG is Leaping Into the Breach:

So here's what I think. I think that we (SFG) can put together a nation-wide practice wind-down program that will bring subscribers to the program, their patients/clients, their loved ones and their professional malpractice companies a great peace and nothing but kind thoughts/remembrances. As part of our Dawn-to-Dusk TM professional practice series, we plan to initiate a wind-down program that will provide the right kind of preparation and implementation of plans to:

  1. Transfer patients/clients to appropriate clinicians, with records, providing continuity of care.
  2. Provide for record retention/destruction consistent with jurisdictional requirements.
  3. Manage the business-financial aspects of a practice (e.g., office leases, subscription services, managed care contracts, etc.).
  4. Protect the loved ones who are in the midst of grieving your loss.
  5. Deal with the legal system, together with your malpractice insurance company, in the event of questionable attempts to invade the privacy and confidentiality of professional records.

The Ethics Requirement That No One Wants (and Many Are Unable) to Face: The Problem

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC


 

The Problem:

So here we are, stuck with an ethics requirement that we don't want to face, and, for many of us, can't embrace because we find it to be virtually impossible to implement. As you can tell from looking at my teaching schedule and cv, posted elsewhere on the SFG website, I teach law/ethics/regulation all over the west coast (including Arizona and even Hawaii). When my presentations cover the issue of "Professional Wills" (the ethical—and in some states, legal—requirement to prepare for unanticipated terminations of practice, due to death or disability), I always poll my audiences to see how many have complied with the requirement that binds all non-physician mental health professionals nationwide (see the APA, NASW, AAMFT and ACA codes, appended to this blog).

Hardly anyone has complied. When I ask about their reasons for non-compliance, I get two kinds of answers. The first category includes those in what we might call avoidance and/or "collective denial," best exemplified by comments like "I know I should do this, but (pick one): haven't gotten around to it, plan to do it sooner or later, can't figure out how to do it, don't want to think about it, etc.".

The second category includes those who are extraordinarily frustrated—they have tried to find a colleague who would make a mutual agreement that they would take care of each others' practices when the need arose, with whomever's need arose first getting the benefit of the agreement. These are colleagues who are neither avoidant nor in denial, but simply can't implement a plan to operate in ways required by ethics and law.

I also ask if anyone has ever assumed the duty of closing a colleague's practice. On those rare occasions when someone raises a hand, the audience is greeted with a horror story of one of the most onerous of tasks, taking oodles of time/energy and effort, most often during a period when the practice closer is also grieving the colleague whose practice is being closed. Such presentations don't do much to increase the interest on colleagues signing up to help each other out.


Obstacles:

When we think about it, there are easily understood reasons why we can't find someone to help us out when the need arises. First on the list is that non-physician mental health professionals are notoriously lousy record-keepers. Some of us don't keep records at all (some states have allowed this for some of us; some of us take the interesting position that if they don't keep records, their records can't be stolen and no patients/clients can have their confidentiality violated, etc.), some of us keep awful records, scrawled on post-its or note paper, in handwriting not even a mother could love.

Some of us don't store records in any recognizable way, such that even someone with authorization to access records might not know where to find them, which ones are current patients/clients, which are past patients/clients, where old records are stored, what the passwords are for computer-based records, where the keys to filing cabinets might be, and on, and on, and on….

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