As is common when I give seminars, workshops, or other HIPAA training, an attendee at my seminar last week for PESI, Inc., on Legal and Ethical Issues in Behavioral Health in Kansas, asked a good question, “What do I do with my clinical records upon my death?” I was able to give her a satisfactory answer, but decided that I should provide this guidance to a broader audience and one that goes beyond behavioral health.

More appropriately stated, the issue really is what measures are you going to take before your death (or incapacity) that will take effect on either of those unfortunate events.

As a preliminary matter, this blog post may not be relevant to a clinician in a large practice because it should already have such procedures in place. But it may be crucial for a sole practitioner or member of a very small practice who may not have thought this issue out.

Yes, in one sense, you may not care what happens after you are dead or wholly incapacitated, but in a larger sense, you want your clients to continue to be well served by your estate and your successors. And your death or incapacity does not prevent the Department of Health and Human Services or a state agency from seeking a civil money penalty after such events occur or prevent patients or clients from suing your estate.

Some states have specific laws or administrative guidelines concerning what to do when a clinician retires or otherwise gives up a clinical practice, becomes incapacitated, or dies. Also, professional associations have ethical guidelines for those situations. If you want to get all over this issue, the first step is to determine what laws, regulations, and ethical guidelines exist in your situation. And, as far as getting all over it, you may not want to wait until you are 70 and ready to retire. Unfortunately, any of us can die or become incapacitated at any age, whether from, say, an automobile accident or a disease, such as early onset (premature) coronary artery disease (EOCAD), see Elizabeth R. Hauser, PhD, et al., “Design of the Genetics of Early Onset Cardiovascular Disease (GENECARD) Study,” Am Heart J. 2003;145(4), at http://www.medscape.com/viewarticle/452774. The Therapist’s Guide for Preparing a Professional Will by Kenneth S. Pope, Ph.D. ABPP, and Melba J.T. Vasquez, Ph.D., ABPP, in Chapter 8 of the book Ethics in Psychotherapy and Counseling: A Practical Guide, 4^th ed., John Wiley (2011), at http://www.kspope.com/therapistas/will.php, succinctly notes that, for these situations, “Only therapists who are invulnerable and immortal don’t need to bother preparing a professional will.”

A professional will is nothing more than a legal document in which a clinician directs what should happen about patient/client matters in the event of the clinician’s incapacity due to death, injury, or illness. Some commentators have opined that having such a document is an ethical duty of therapists. Loretta J. Bradley et al., “The Professional Will: An Ethical Responsibility,” The Family Journal: Counseling and Therapy for Couples and Families 20(3) (2012) at file:///C:/Users/Jon/Downloads/The+Professional+Will+-+An+Ethical+Responsibility.pdf.

The entirety of a so-called professional will is beyond the scope of this blog, which focuses on HIPAA and the HITECH Act and other health information issues, but a few general observations as to what such a legal document should contain may be helpful. The above referenced Chapter 8 specifies that a professional will should contain the following:

• A designation of who is in charge, typically called the executor. In the more common type of will, the testamentary will, the executor is responsible for the disposition of the decedent’s remaining financial obligations, including payment of debts and taxes, and the disposition of property. In the professional will, the executor will carry out the mandates of the document, such as notifying patients/clients of the death or incapacity of the caregiver, notifying them of alternate caregivers, arranging for transfer or other disposal of the records, and the like.
• A designation of an alternate executor in the event that the primary one is unwilling or incapable of discharging his or her duties.
• Information concerning your instructions for your office(s) and office security, such as, for example, who has keys not only to the building or office suite, but also to rooms, filing cabinets, and the like. In the event that you have keypads, how does the executor retrieve the code? Do you have any offsite storage? Do you have an electronic medical record and, if so, what are its passwords? Do you store PHI in the cloud and, if so, how can the executor or a substitute clinician retrieve it?
• Instructions for notifying patients/clients, or others of the death or disability, including whom to contact to get referrals to other clinicians who can take over their care, those who can get them copies of the records, and the like. These instructions should also cover dealing with your unfulfilled or soon to be unfulfilled schedule. Where is it kept? How can the executor access it? How to notify the parties that you won’t, say, be able to testify in a child custody case? The executor must, of course, respect the patient/client’s HIPAA and other state and federal law privacy rights and honor requests for alternate communications in making such notifications. And what other clinicians must be notified of the incapacity for continuity of care and other clinical reasons?
• Where are your clinical records kept and how can the executor access them or provide them to the patients/clients or successor clinicians? How are incomplete records to be completed?
• What are the lines of communication between the practice, its patients/clients, and others? Does the practice have a telephone answering service, have a patient portal, permit email communications, and the like? If so, what are the conditions for continuing to use them or setting up alternative communication methods until the clinical situation is settled?
• Malpractice/other insurance notification? What is required and what are the executor’s duties therefor?
• Billing and other reimbursement issues? Where is such information maintained? Did the practice use an outside billing service and/or an accountant? What services do they provide, should they continue to do so during the winding-up period, and what data do they need?
• Costs? How is the executor to be compensated? And from what funds? Your testamentary will should allow the executor of that will to pay the fees and expenses of the professional will executor or the estate’s assets may be dissipated in unnecessary litigation.
• Legal review? Many (but not all) of my sample policies do not absolutely require legal review. But any will or similar document does because, for example, every state has different formalities, such as, for example, number of witnesses, necessity for notarization, and the like. You want a professional will to be not only well drafted and complete, but also to be enforceable.

I trust that this blog post will cause you to consider the need for a professional will and give you a start in (with the assistance of a qualified attorney) drafting one.

As to your client charts, again check into the requirements of HIPAA, other federal laws, your state statutes and regulations, your discipline’s professional ethics, and good common sense.