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By: Ofer Zur, Ph.D.
This addendum is part of an online course on Record Keeping. It focuses on California Law in regard to record keeping in psychotherapy.
Introduction
This document is a part of an online course on record keeping and focuses on the application of California Law to record keeping.
The most relevant codes of ethics for California psychologists, MFTs and LCSWs are the APA, CAMFT and NASW, respectively. For information on these and other codes on record keeping, go to http://www.zurinstitute.com/ethicsofrecordkeeping.html.
For summary of the regulations, click here.
California Laws and Regulations Relating to the Practice of Psychology
The parts of California law most relevant to the topic of law and dual relationships and boundaries in psychotherapy and counseling are in the following:
Business and Professional Code of California
For regulations online:
California Health and Safety Code Section 1795.26:
This code requires records to be maintained for a minimum of seven years following the discharge of a client from certain clinics, including nonprofit psychological clinics. In the case of minors where the records shall be kept at least one year after the minor has reached the age of 18, but in no case less than seven years).
BOARD OF BEHAVIORAL SCIENCES
LAWS AND REGULATIONS RELATING TO THE PRACTICE OF MARRIAGE AND FAMILY THERAPY, LICENSED CLINICAL SOCIAL WORK, AND LICENSED EDUCATIONAL PSYCHOLOGY, p. 33:(http://www.bbs.ca.gov/ )
§4982.05. ENFORCEMENT STATUTE OF LIMITATIONS
(a) Except as provided in subdivisions (b), (c), and (e) any accusation filed against a licensee pursuant to Section 11503 of the Government Code shall be filed within three years from the date the board discovers the alleged act or omission that is the basis for disciplinary action, or within seven years from the date the alleged act or omission that is the basis for disciplinary action occurred, whichever occurs first.
(e) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging sexual misconduct shall be filed within three years after the board discovers the act or omission alleged as the ground for disciplinary action, or within 10 years after the act of omission alleged as the grounds for disciplinary action occurs, whichever occurs first. This subdivision shall apply to a complaint alleging sexual misconduct received by the board on and after January 1, 2002.
Business and Professional Code §123145: Preservation of records after licensee ceases operation; Action for abandonment of records:
Dr. Harmell, former chair of Board of Psychology, noted (BOP Update, March, 2003) that above section 123145
. . . applies the seven-year obligation to certain licensed providers working in licensed clinics (Health and Safety Code section 1205), health facilities (Health and Safety Code section 1253), adult day health-care facilities (Health and Safety Code section 1275), and skilled nursing homes (Health and Safety Code section 1726).
Psychologists are within the definition of certain licensed providers of health services, however; Health and Safety Code section 123145 does NOT apply to private practice settings. See detailed below.
Specific Board of Psychology (BOP) guidelines for record keeping
Read the following:
Source: http://www.psychboard.ca.gov/pubs/bop-1097.pdf
1. Article by The former chair of BOP, Bruce Ebert, Ph.D., J.D., on Record Keeping on pages 1 & 11.
2. Article titled Record Keeping and Disposal on pages 2 & 3.
Source: http://www.psychboard.ca.gov/pubs/bop_2003_03.pdf
3. Article by the former chair of BOP, Pamela Harmell, Ph.D., on Record Keeping on pages 1 & 11.
How long to retain records in CA:
After January 1, 2007:
Beginning January 1, 2007, all licensed psychologists in California must retain a patient’s health service records for a minimum of seven (7) years from the patient’s discharge date or seven years after the patient reaches the age of majority.
AB 2257 was signed by Governor of California, Arnold Schwarzenegger, on July 20, 2006:This is a much needed clarity as prior to the passage and signing of AB 2257, state law did not address the issue of record retention by psychologists in independent practices.
The new requirement represents a minimum requirement for the length of time psychologists must retain mental health records. Private practitioners are allowed to retain their records for a longer period, if they wish.
The new requirement is consistent with current practice for California’s heath facilities, such as licensed clinics, nursing facilities, adult day health care facilities, intermediate care facilities, and skilled nursing homes. Florida, New Jersey, and Oregon have equivalent record retention requirements of seven years minimum from last appointment or date of service. Texas has the longest retention of records with a minimum of ten years and an additional ten years after the patient turns eighteen.
Until January 1, 2007:
Surprisingly, there is some confusion in regard to how long psychotherapists in California must retain their records after clients’ termination.
BOP Update, published October 1997, in an article titled, Disposal of Records, where it stated:
In principle, the practitioner needs to maintain records as long as there is a chance that they will be needed (e.g., financial reasons, such as documentation for an IRS audit; continuity of care; legal situations in future). One practical recommendation is to keep records for at least seven years from the termination of treatment; this corresponds with the length of time that the IRS can audit a tax return. The American Psychological Association recommends that the full record be retained intact for three years after completion of planned services or after the last date of contact with the consumer (whichever is later), and that the full record or a summary of the record be maintained for an additional 12 years. (Note: In view of another [1981] guideline that states that the full record for counseling psychologists be retained for four years, a conservative approach would recommend that all psychologists retain the full record for four years and a summary of the record for an additional 12 years.) If the client is a minor, the record period is extended until three years after the age of majority. The record may be disposed of no sooner than 15 years after completion of planned services or after the date of the last contact, whichever is later. In California, the Health and Safety Code (Section 1795.26) requires records to be maintained for a minimum of seven years following the discharge of a client from certain clinics, including nonprofit psychological clinics (except in the case of minors where the records shall be kept at least one year after the minor has reached the age of 18, but in no case less than seven years).
BOP Update, published in March 2003, an article by the former BOP chair, Pamela Harmell, Ph.D., titled, Clarification of Record Keeping in Private-Practice Settings, where she stated:
. . . In reviewing this issue with several experts it seems that the seven-year retention rule California Health and Safety Code section 123145 does NOT APPLY to private-practice settings. Health and Safety Code section 123145 applies the seven-year obligation to certain licensed providers working in licensed clinics (Health and Safety Code section 1205), health facilities (Health and Safety Code section 1253), adult day health-care facilities (Health and Safety Code section 1275), and skilled nursing homes (Health and Safety Code section 1726). Psychologists are within the definition of certain licensed providers of health services however, Health and Safety Code section 123145 does not apply to private practice settings . . . No particular statute addresses record retention for private-practice clinicians practicing in California, and psychologists should take direction on this issue from the accepted standard of care. When in doubt, or when no actual state statute applies to a specific issue, the American Psychological Association directs psychologists to review the Specialty Guidelines for the Delivery of Service (1981), which recommends the full records be retained intact for three years after completion of planned services or after the last date of contact, and that full or summary records be retained for an additional 12 years. The record may be disposed of no sooner than fifteen years after completion of planned services or after the date of the last contact, whichever is later. To summarize, private practice clinicians should follow the Specialty Guidelines and retain records for the fifteen-year guideline unless working in one of the facilities covered by Health and Safety Code section 123145 where the seven-year rule applies.
REFERENCE
American Psychological Association. (1981). Specialty Guidelines for the Delivery of Services. Washington, DC: AuthorThe recommendations for record keeping for California Psychologists are:
There is no California law that dictates how long private practice clinicians must retain patient records. Many experts maintain psychologists should follow the (rather old) Specialty Guidelines for the Delivery of Services (1981) when there is no state statute that gives absolute guidelines to follow (Caudill & Pope, 1995; Stromberg et al., 1988; Bennett, 1990).
- Full records to be retained intact for three years after completion of planned services or after the last date of contact.
- Full or summary records to be retained for an additional twelve years.
- The record may be disposed of no sooner than fifteen years after completion of planned services or after the date of the last contact, whichever is later.
- In the case of minors where the records shall be kept at least one year after the minor has reached the age of 18, but in no case less than seven years.
- Please note that there may be forensic or other reasons to keep records longer.
- Contact BOP and CPA for updates and verification.
The recommendation for record keeping for California MFTs and LCSW are:
Taking §4982.05., Enforcement Status Limitation code and the changes instituted in 2004 into consideration, the recommendations are:
- Records created by marriage, family and child counselors and social workers should be preserved for a minimum of ten years following the discharge of the patient.
- Records of unemancipated minors should be kept one year after the minor has reached the age of majority but in no event less then 10 years.
- Please note that there may be forensic or other reasons to keep records longer.
- Contact BBS, CAMFT or CA-NASW for updates and verification.