Beyond the Professional Will
By Berna G. Haberman, PhD, LMHC, LMFT, CCMHC
Consider the following very possible—and unwelcome—scenarios:
- Vacation: You are a passenger on a cruise ship in the Mediterranean Sea. The ship hits a rock just off the coast of Italy and founders. (This actually happened to the Costa Concordia cruise ship in January 2012.) Your body is lost at sea. Who will contact your clients? What will happen to your clients’ records? Who can release the records? Does another professional know where your records are kept?
- Incapacity: You are in an accident or suddenly fall ill and are in a coma. Your family is under great pressure to make medical decisions for you. Your office phone keeps ringing, but no one answers or returns calls. Do you have an emergency plan for a fellow professional to notify your clients that you will not be available? (Though she is a politician rather than a mental health counselor, when U.S. Rep. Gabrielle “Gabby” Giffords, D–Ariz., was shot at a Tucson shopping center in January 2011, her staff had to face this difficult situation.)
- Family emergency: Monday morning your mother calls to say that your father has had a stroke and asks, “Can you come immediately?” You buy a plane ticket, pack, and take off. Luckily you remember to take your client list. While suffering grief, under stress, and experiencing anxiety, you now have to contact the 20 clients scheduled for this week. Is there a better way? (Probably most people know someone to whom this has happened.)
These are only three examples of scenarios that show clearly why clinical mental health counselors need a professional plan of action for continuity of care and transfer of records.
Are you aware that the AMHCA Code of Ethics, as well as the ACA’s, state that you need to have a plan of action for transfer of records in the event of your death or incapacity, or for a time when you are not able to be in contact through your office?
These Codes of Ethics state that:
Mental health counselors develop a plan for termination of practice, death, or incapacitation by assigning a colleague or records custodian to handle transfer of clients and files.
(AMHCA Code of Ethics: C.1.n)
Counselors prepare and disseminate to an identified colleague or “records custodian” a plan for the transfer of clients and files in the case of their incapacitation, death, or termination of practice.
After speaking with several individuals and conducting preliminary research, I discovered many articles on professional wills, but few on the topics of transfer of records and the importance of appointing a records custodian. Having a professional will alone is not sufficient to comply with AMHCA and ACA ethics codes.
A professional will, if it is legal in your state, is probated only after an individual has died and cannot serve as a plan of transfer for professionals who become incapacitated or suddenly unavailable. I believe that every mental health professional has an ethical obligation to have a plan of transfer as well as a records custodian.
This plan should be reviewed with each client to ensure that the client has been informed and has consented to this plan.
Preparing for the Unexpected
Following are suggestions for clinical mental health counselors and their appointees to consider including as part of a plan of action should the therapist become unavailable, incapacitated, or die. (Caveat: Always consult a lawyer for legal advice.)
- Appoint a records custodian. (See the box at the end of the article for an example of an agreement with a fellow professional.)
Be sure to give the name and contact information of your custodian of records to your clients. I suggest including this information as part of your client contract.
Though a spouse, partner, relative, or friend technically could serve as the custodian of records, I would not recommend this. Such an appointment might put an undue burden on the person. Also, the appointee needs to be aware of the HIPAA regulations and the Codes of Ethics that govern the transfer of records and confidentiality, and the laws of the state or commonwealth.
- Consult a lawyer. Ask the lawyer to execute a limited power of attorney and a codicil to an existing will, or write a new will including the information in the above agreement.
- Gather information about your practice. The plan of action for continuity of care and transfer or records includes additional information that may not be included in a will:
- Professional documents: Malpractice insurance policy, copies of license/s, current certifications, National Provider Identifier (NPI), and Council for Affordable Quality Healthcare (CAQH) number
- Business records: These include billing information, and the names and contact information for insurance panels and Employee Assistance Program (EAP) panels you are on
- Client list: It’s important to keep this list up-to-date!
Information to Ease the Transition for Clients:
- Answering machine or confidential voice mail: Past or potential clients and insurance companies may find it disconcerting to reach a disconnected number. I suggest you keep your current telephone number for six months and have your records custodian record a message such as, “Jan Jones is no longer accepting new clients. Please call Dana Smith at 617–555–2013 for additional information.”
- Instructions for family and immediate associates: Be sure to inform family members and immediate associates of your wishes and of your plans.
- Letter to clients: You may wish to draft a letter to clients that your records custodian would send only if you became unexpectedly unavailable to your clients. I suggest that the letter reflect your personal view of counseling and the relationship you have to your clients. How do you want your clients to think about or remember you?
- Disposal of records and retirement plan: This information can also be included in your personal action plan.
Finally, you can make life easier for yourself—and for your family and records custodian—by keeping your practice information in one place. Putting it all in a binder or file will make a difficult situation easier for your custodian of records when they need to access it. Also, you and your family will not have to worry about being in compliance with the AMHCA and the ACA Code of Ethics.
I encourage you to keep this binder current by updating your individual information as it changes—such as your renewed license, malpractice insurance, and your client list.
Berna G. Haberman, PhD, LMHC, LMFT, CCMHC, who is in private practice in Framingham, Mass., is the founder of the Massachusetts Mental Health Counselors Association (MMHCA). She received AMHCA’s Mental Health Counselor of the Year Award in 1999–2000, and has served on AMHCA’s board of directors and on its Ethics Committee.
After working with the families of professionals facing the difficult situation described in this article, she created a manual for her fellow professionals, their families, and their clients. The 3-ring binder format enables users to easily add their personal and professional information and provides a single place to keep all of this important information. For additional information on “Beyond the Professional Will: The Mental Health Professional’s Guide to Creating a Plan of Action for Continuity of Care and Transfer of Records,” visit the website of publisher, Linda L. Lawless, LMFT, LMHC, or contact her at 415–356–9809.
Sample of a Plan-of-Action Agreement
With a Fellow Professional
I, Jan Jones, of 1300 Stone Street, Framingham, Mass., appointDana Smith, 1 Stowe Street, Natick, Mass., 617–555–2013, to handle all emergencies related to my practice as a clinical mental health professional.
These emergencies may include vacations, illness, retirement, incapacity, or death.
Dana Smithhas access to my records and will act in accordance with the AMHCA and ACA Codes of Ethics,
the laws of theCommonwealth of Massachusetts, and the HIPAA Regulations.
Counseling records must be kept for a minimum of seven years after the last date of service. I also direct
Dana Smithto destroy my files by HIPAA-compliant standards after the seventh year from the last date of
service. This can be completed onDana Smith’s time schedule. All files should be destroyed within 10 years
after my death or incapacity. If I have retired, I will personally destroy my files on this time schedule.
My files can be found in a locked cabinet in my office. The key is[state its location], and the code is
Jan Jones __________________________ Date _______________
Dana Smith __________________________ Date _______________