What Goes in Your Notes? Interstate therapy practice and documentation for clients considering abortion or gender affirming care

What Goes in Your Notes? Interstate therapy practice and documentation for clients considering abortion or gender affirming care

Curt and Katie chat about documentation and practice questions related to abortion or gender affirming care when providing therapy to folks in states where these types of medical care are banned or will be banned soon. We look at medical documentation privacy concerns (related to HIPAA and the 21st Century Cures Act), how therapists avoid “aiding and abetting” a client to get an abortion, what to include in your notes, and special considerations related to duty to warn and child abuse reporting. This is a law and ethics continuing education podcourse.

Transcripts for this episode will be available at mtsgpodcast.com!

In this podcast episode we explore post-Roe documentation for therapists

We’ve heard a lot of questions about what therapists should do now that Roe has been overturned. We decided to dig into practice and documentation guidelines to help modern therapists navigate the changing times.

Medical documentation privacy concerns with interstate practice and the new abortion bans

• HIPAA and the 21st Century Cures Act
• The impact on clients who move from safe haven states to states with abortion bans
• The impact of the Counseling Compact (and similar mental health compacts) and how many participating states have trigger laws to ban or limit abortion
• Paying attention to jurisdictional differences and where the client lives
• Who qualifies as a HIPAA covered entity?
• Psychotherapy (Process) Notes versus Progress Notes
• Psychotherapy notes are not defined the same and/or protected in every state
• The impact of civil law suits on confidentiality of process notes
• The huge challenge of information blocking and who may pass along your treatment information
• Talk to an attorney or your professional organization when subpoenaed

How do you avoid “aiding and abetting” a client to get an abortion during mental health treatment?

• Processing feelings and helping client to make their own decisions
• Aiding and abetting can include telling them where to go, encouraging them to get an abortion, or providing practical support (like money or a ride)
• How to provide resources without aiding and abetting
• Self-empowerment and clients making their own decisions
• Liability and risk in practice (check with your malpractice insurance)
• Whether/how you let your clients know where you stand on the overturn of Roe v Wade

What do you include in your notes when talking about abortion and gender affirming care?

• What is relevant to your treatment goals?
• Documenting progress toward treatment goals
• Creating a policy related to medical decision-making
• Phrases that you can use to briefly describe what is happening in session
• How much to document and the recommendation to be less specific in progress notes when discussing medical decisions

The special considerations related to duty to warn and child abuse reporting when talking about abortion and gender affirming care

• No case law to guide us here
• The difference between permissive versus required reporting
• Vast differences across the states with all of the different pieces
• HIPAA says that we should not report, but we will be impacted by state laws
• Recommendations to pay attention to what is happening in the states where you practice and to identify advocacy opportunities to protect information, safe haven laws