The AAMFT Blog

Responding to Subpoenas

Sponsored by CPH & Associates

by Denis K. Lane, Jr., Attorney at Law

 

The protocols for responding to a Subpoena for testimony or a Subpoena for production of records are important to avoid a breach of client confidentiality – or HIPAA violation – and other consequences. This Blog is intended to provide guidance regarding the steps that an MFT should follow after being served with a Subpoena, as well as procedures that an MFT can undertake when informed that they will be served with a Subpoena. First, however, lets discuss some basic legal information regarding Subpoenas.

A Subpoena does not require a therapist to testify in court or at a deposition, nor does it require the production of confidential, privileged treatment records. A Subpoena, that has been properly served, directs a therapist to appear at a specific time and place, either to give testimony or to produce records in the possession of an MFT. A Subpoena does not compel a therapist to disclose confidential treatment information including records. Client consent must be obtained, authorizing disclosure of treatment information, before a therapist can testify or produce treatment records. Just as AAMFT Ethical Principle 2.1 requires that treatment information be kept confidential, AAMFT Ethical Principle 2.2 requires that a client consent to the disclosure of confidential treatment information.

Steps to take in Responding to a Subpoena

1. Contact an Attorney. The best advice for an MFT who is served with a Subpoena or is informed that a Subpoena will be issued to them is to hire an attorney. MFTs who are insured through the group professional liability insurance program for AAMFT members through CPH & Associates, should contact CPH to submit a claim, in order to see if insurance coverage exists to pay an attorney under the professional liability policy issued to the therapist. The legal issues which can arise in connection with the subpoena include the following: Was the Subpoena properly served? Has proper consent, waiving the privilege, been received from the privilege holder(s)? Is the therapist entitled to an expert fee for court testimony? Whether state law and HIPAA standards require the production of treatment records identified in a subpoena? When a client objects to testimony by an MFT for production of treatment records, an attorney can make the appropriate legal arguments in court through a Motion to Quash the Subpoena or by the filing of a Motion for Protective Order.

2. Contact the Client(s) or Client Representative. Has the counseling client, or client entity if it is a couple or family, provided informed consent in writing, authorizing disclosure of confidential information to the judge, the attorneys, and all others who may be present for testimony? An MFT needs to determine if the client is willing to authorize the disclosure of treatment records subpoenaed – usually the entire client chart – at the time and place indicated by the Subpoena. If the client objects to the disclosure of treatment information, then the therapist or their attorney needs to raise this objection to the attorney or party who issued a subpoena, stating the reasons why objections are being made to the disclosure of treatment information. For example, if an MFT provided couples counseling, the therapist cannot disclose information or testify without the consent of both members of the client couple in compliance with AAMFT Ethical Principle 2.2. If parents have been given “joint decision-making authority” by the court, requiring both parents to consent to mental health treatment for their children, then the parents jointly hold the privilege for a child, so the parents must jointly consent to the disclosure of treatment information, just as they were required to jointly consent to treatment. If a client does not authorize the disclosure of treatment information or production of records, then the client should instruct his or her attorney to oppose the Subpoena and file a Motion raising appropriate objections with the court. It should be the client’s attorney who engages in legal procedures, at the client’s expense, to protect the client’s privacy and the confidentiality of the client’s treatment information. However, if the client has no attorney or if the client’s attorney refuses to file a Motion raising the appropriate objections, then therapists should use their own attorney to handle the legal issues.

3. Expert Fee or Compensation. When an MFT is required to testify concerning the assessment of a client, the treatment goals formulated, the treatment plan, and progress made in treatment, all of the therapist’s opinions regarding presenting problems, diagnoses, and the treatment plan, , constitute expert opinions, based upon the therapist’s professional education, training, experience, and familiarity with the client. The fact that an MFT may be testifying as an expert entitles the therapist to be compensated appropriately for their time in traveling roundtrip to court, waiting to be called as a witness, and testifying on the witness stand. Either the therapist or an attorney should provide notice to the individual, who issued the Subpoena, regarding the hourly expert fee that is charged for testimony in court. If a witness is providing factual testimony, then only a witness fee can be charged; e.g., “Did you see the husband strike his partner? “ “Did your client admit that physical punishment administered to a child left bruises and welts?”

4. Appearance in Court or at a Deposition. A professional who has received a Subpoena cannot ignore it and must appear at the time and place indicated, unless the therapist’s attorney or the court direct otherwise. If the client has not waived the therapist-client privilege or consented to disclosure of treatment information, the therapist should inform the court before testifying or turning over records that no client has waived the privilege or consented to disclosure of treatment information. In addition, an MFT or retained counsel may inform the judge that any information in the therapist’s possession would be personal, private, and harmful if disclosed. This argument can be made without acknowledging that a professional relationship has existed in the past with any person in the courtroom. When ordered by the court to testify or to produce records, the therapist should comply with the court’s order, trusting that the judge is properly applying the law.

5. Requests to Waive Formal Service of a Subpoena. A therapist may receive a Subpoena that is sent by email or through the U.S. mail, accompanied by a card or a Waiver of Service, which requests that the individual “waive service”, by signing the card or Waiver, and returning it to the individual who submitted the Subpoena. Questions frequently occur regarding whether or not an MFT should waive service in such a situation, or not? Experience has shown that it may be best not to waive formal service of a subpoena, unless the therapist is assured: (1) that the client(s) or client representative consents to the disclosure of treatment information sought through the issuance of a Subpoena; (2) that the therapist will be provided with an appropriate fee for testifying; and (3) the therapist has been informed regarding the subject of any court testimony, so that the professional will be prepared for the appearance in court. Why agree to waive service of a Subpoena if the client objects to the disclosure of treatment information?

6. Compliance with AAMFT Ethical Standard 7.7. Before testifying in court, an MFT should review the AAMFT Code of Ethics (2015). In doing so, make sure that you comply with AAMFT Ethical Standard 7.7, which applies to testimony in divorce or custody litigation, and instructs that a clinician who has provided services to a family member may only testify concerning the MFT’s clinical perspective regarding the treatment, and may not express any opinion regarding custody or arrangements for parenting time or visitation.

In conclusion, therapists should protect themselves and the confidentiality of client treatment information in their possession by following these steps to ensure that client consent is obtained before disclosing any treatment information sought through a Subpoena. MFTs should make certain that they comply with the ethical Principles established by AAMFT regarding confidentiality of treatment information and the waiver of confidentiality by the client or by the client entity. A best practice for MFTs would be to identify an attorney who can represent the MFT in responding to a Subpoena, if needed, at a moment’s notice. This will help to ensure that MFTs comply with not only the ethical principles and HIPAA standards applicable to them, but also with court rules and state laws that are applicable.

Interested in hearing more on this topic? Join us for a live podcast with Q&A on Friday, March 31 at 3:00 p.m. eastern. Register today!

Federal Healthcare Reform Stalls in Congress

update to Support Access to Mental Health Services

A scheduled vote on legislation that would make significant changes to the U.S. healthcare system was delayed on Friday, March 24. The legislation, known as the American Health Care Act (AHCA), was intended tor replace the Affordable Care Act. AAMFT, and other health organizations raised concerns that the legislation would increase the number of uninsured individuals, reduce access to mental health services, and substantially change Medicaid. Thank you to all the members who wrote in to Congress. AAMFT will continue to advocate for increased mental health access and parity.

Support Access to Mental Health Services

 

The U.S. House of Representatives will be voting this Thursday on legislation, known as the American Health Care Act (AHCA), that would make significant changes to the healthcare system in United States. The AHCA is intended to replace the Affordable Care Act. Although changes to the healthcare system are needed, AAMFT, along with many other national organizations representing behavioral health providers and consumers, has serious concerns about some provisions of the AHCA.

As it is currently written, starting in 2020, the AHCA would roll back Medicaid expansion, as well as turn Medicaid into a block grant program. This legislation would significantly reduce Federal assistance for individuals in the private insurance market. According to the Congressional Budget Office, the net effect of this legislation would result in an additional 26 million people uninsured by 2026 compared to current law. This increase in the number of uninsured would leave many with mental health or substance use disorders without receiving care from behavioral health providers, including MFTs. Since people with untreated mental health and substance use disorders often end up in the emergency room, any cost savings due to these cuts will be offset due to increased costs to hospitals in providing this care.

In addition, this legislation would eliminate the requirement that a state Medicaid managed care plan cover essential health benefits, including the treatment of mental illness and substance use disorders. The elimination of mental health and substance use disorder services as a required benefit, along with the other changes to Medicaid made under the AHCA, will eventually force state governments to reduce or eliminate behavioral health services as benefits to enrollees in these Medicaid programs.

Please take action and urge your Congressperson to oppose the AHCA and any health reform legislation that does not at least maintain current access to mental health and substance use treatment. It is important that MFTs educate Members of Congress on the need for continued access to mental health and substance use treatment. If you have any questions or need additional information, please contact AAMFT at [email protected].

Directions:

1. Go to http://www.congressweb.com/aamft

2. To use our template message, click Write your Legislators below the text  (Legislator will populate based on your address)

3. To write your own message, insert your street address and zip code and then click Write Your Legislators

4. Share on social media or through the link to increase our efforts

AAMFT Signs Letter Regarding the American Health Care Act

AAMFT has joined a letter to Congress by the Mental Health Liaison Group that expresses serious concerns about several provisions in the American Health Care Act, the current legislation that is intended to replace the Affordable Care Act.  AAMFT is a member of the Mental Health Liaison Group, a coalition of national organizations representing behavioral health providers and consumers, and family members. 

Click here to read the letter.  

How the TMA Ruling Affects Other States' Right to Diagnose

On Friday, February 24, 2017, the Texas Supreme Court reversed a lower court decision and affirmed the validity of a Texas MFT licensure board rule authorizing marriage and family therapists to diagnose. As a program director of a marriage and family therapy program for over fifteen years, I have witnessed the critical importance of the legal authority of MFTs to be able to diagnose. Graduates venturing into states that did not specifically authorize MFTs to diagnose often found a challenging environment. The opinion offered by Justice Jeffrey S. Boyd highlights the central role of the definition of diagnosis in the Texas ruling. Had the lower court ruling held, Texas would have been the only state specifically excluding MFTs from diagnosing mental and behavioral disorders and the impact would undoubtedly have been felt well beyond the borders of Texas.

The authority to diagnose is a lynch pin for the success of the profession. I have observed a number of challenges in states that did authorize MFTs to diagnose. Graduates of our training program seeking employment would repeatedly be turned away from positions primarily because of the restriction about diagnosing. With fewer avenues for employment as an MFT, university and other training programs in such environments are reluctant or even able to maintain a program when potential students recognize the limits of the MFT license. With limited training programs, research and innovation of the field are further compromised. Professional groups, associations and lobby efforts purposed to advance the profession and practice of MFT are equally compromised by fewer members. When opportunities for MFTs are limited, other mental and behavioral  health professions have greater opportunity for expansion further diminishing the value of the MFT. Such an environment delegitimizes the profession of marriage and family therapy as a whole.

Specifically excluding MFTs from diagnosing would undoubtedly cripple the practice of marriage and family therapy in Texas, but far beyond as well. If marriage and family therapy is progressively devalued, recent gains for MFTs in venues such as the Veteran's Affairs may be impacted. Federal efforts for inclusion of MFTs as Medicare providers are hampered if practice in one of largest states is minimized. Perhaps most profoundly, a successful effort in Texas to deny MFTs the privilege to diagnose, sets the stage for such similar argument in other states.

Many may fairly criticize the DSM 5 as a contrast to systemic thinking, but the ability to meaningfully diagnose is critical not only to effective care and treatment, but a privilege absolutely critical to the long term advancement of the profession. Without a doubt, the ruling in February upholding the validity of MFTs in Texas to diagnosis is a central to practitioners everywhere and the professional as a whole. This ruling by the Texas supreme court may well be the single most important case thus far for the profession of marriage and family therapy.

 

Chris Habben, PhD, LMFT is president of AAMFT. He is a Professor of Marriage and Family Therapy and Program Director of a COAMFTE accredited Master's Degree Program at Friends University. Dr. Habben has served as a clinician in hospital, non-profit and private practice settings, as well as an AAMFT Approved Supervisor actively training students and post graduate supervisees. He has served in various local and national leadership positions in the field of Marriage and Family Therapy.

Montana Lobbying Day: Two Bills Passed the House

On February 10, a small group of Montana marriage and family therapists gathered in Helena at the capitol to lobby for three bills that can significantly impact the ability of MFTs to practice in Montana.

Montana's legislative body meets once every two years for four months. The legislators take time away from lives, careers, and family to serve Montana and its citizens. Most legislators do not have staff to help with the tremendous work load of making, researching, supporting or fighting the laws that are introduced. Therefore, MFTs had a responsibility to come to the capitol and educate about our profession and the laws that would impact us.

In Montana, licensure for MFTs is fairly new, starting in 2009. Because of that, third party reimbursement is often a challenge. Also, we are not included in some scope of practice laws that affect our peers licensed as professional counselors and social workers. Because of this, our Montana Association for Marriage and Family Therapy board decided to hire a lobbyist to help. We would not have been able to afford the help if AAMFT was not willing to assist with the cost through the practice protection fund, for which we are very grateful.

The three bills we have introduced involve MFTs receiving insurance reimbursement, Medicaid reimbursement, and to include MFTs to be able to use psychological testing instruments. Without this, an LMFT in Montana has a difficult time being reimbursed and could face charges for using a test instrument which he or she was trained to provide.

To prepare for lobbying day, we ordered brochures from AAMFT and put together a board of information, including where MFTs were located in Montana. We got lots of food and put together platters to entice people to come learn about MFTs and our bills.

Our experience was amazing. Few of us had lobbied before or been involved in the political process at the state capitol. We came from all over the state. Fortunately we had all arrived the night before since an ice storm hit us the morning of the lobbying day. Once we arrived, we were greeted with warmth and interest from the legislators and other capital staff. They were helpful, interested, and appreciative that we would come and bring them food. We found ourselves explaining what marriage and family therapy is, how were are trained, what services we provide, and how they could support us legislatively. So far our effort has paid off as two of our bills have passed the house and are on to the Senate.

Montana Association for Marriage and Family Therapy is so grateful to AAMFT for assisting us in our lobbying efforts to increase our ability to practice in the state of Montana.

Participants were Rachel Guernsey, Cyndi McNeil, Pamela Bing Perry, Andrea Foran, and Dianna Keane. Christine King and Pamela Bing Perry also participated by testifying for committee hearings.