The OP Review November 2005 - Ohio Psychological Association

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When Can a Psychologist Turn Over a Deceased Patient’s Records to the Executor of the Patient’s Estate By Stephanie D. Champ, JD, Carlile Patchen & Murphy LLP W ith all of the confusion surrounding who can access and what exactly can be accessed from a patient’s files, psychologists can sometimes feel trapped. It seems that no matter what you do as a service provider, someone is always upset by the disclosure, or non-disclosure as the case may be, of a patient’s records. However, the Ohio legislature has made the determination of to whom you can disclose somewhat easier. For instance, the short answer to the question asked in the title of this article is “whenever and in the same manner you would turn over records at the request of the patient.” A recent article that appeared in the Pennsylvania Psychologist analyzed Pennsylvania law and determined that “a strong argument can be made that the control over the release of a deceased client’s [records] . . . can be exercised by the executor of the client’s estate.” In Ohio, there is no need to make a “strong argument” as the issue is specifically addressed by Ohio’s statutes governing access to medical records. Ohio Revised Code (“O.R.C.”) § 3710.74(A)(11) provides that a deceased patient’s executor or administrator is a “patient’s personal representative” entitled to access medical records exactly as the patient would be. In fact, a refusal to turn over records to the executor or administrator could subject a psychologist to a civil action to enforce the executor’s or administrator’s right to review the records. O.R.C. § 3701.74(C). You should be careful to ensure, however, that the person requesting the records is actually the appointed executor or administrator of the deceased client’s estate. Such a person would have formal documents from the probate court where the deceased patient resided appointing them as executor or administrator. In some instances, there may be no such authorized person because the patient has no estate to administer formally. The definition of “patient’s personal representative” also includes the “person responsible for the patient’s estate if it is not to be probated.” In such a situation, who that person is will depend on the patient’s circumstances at the time of his or her death. You should not assume that a surviving spouse or child is the “person responsible.” When in doubt, contact your own legal counsel. As with any records request, the request from the executor or administrator must be in writing. O.R.C. § 3710.74(B). Moreover, the same right to charge for copying of the records, within the limits set out in O.R.C. § 3701.741(B), or under a negotiated contract pursuant to O.R.C. § 3701.741(E), exists as well. Note that if the executor or administrator needs the records to support a claim for certain social security benefits, the records must be produced at no charge. O.R.C. § 3701.741(C)(5). 1 Effective December 21, 2004, the statutes governing access to medical records were amended to add the following to the definition of “patient’s personal representative” [formerly just “patient’s representative”] (1) a minor patient’s parent or guardian or other person acting in loco parentis; (2) a court-appointed guardian; and (3) persons acting pursuant to a durable power of attorney for health care. What Are Psychological Associations Doing with Technology By Kenneth Drude, PhD, OPA Communications & Technology Chair, and Stephanie Parnes, OPA Student Intern The OPA Communications & Technology Committee conducted a survey of state, provincial and territorial psychological associations in the United States and Canada during mid—2005. A three-page questionnaire with 16 items was sent via e-mail on a listserv for the executive directors of those associations by the OPA executive director. A total of 23 out of 60 forms were returned and tabulated. Association Technology Capabilities Respondents to the survey were asked to rate their capabilities in six different areas (hardware, software, staff expertise, Internet access, Web site and staff access to technology related training) using the terms “excellent,” “good,” ”fair” and “poor.” Median ratings were calculated for each of the six areas. As seen in Table 1, associations overall rated most of their technological capabilities as good to excellent. Table 1-Median Technology Capability Ratings Rating Hardware Software Experience Internet Web site CE Excellent 3 48% 35% 30% 61% 26% 4% Good 2 48% 52% 57% 35% 52% 35% Fair 1 0% 9% 13% 4% 22% 39% Poor 0 4% 4% 0% 0% 0% 22% 2.4 2.2 2.2 2.6 2.6 1.2 JUNE 2005 12
Internet access was rated the highest (excellent) and staff access to technology continuing education the lowest (fair). Average ratings for software, staff expertise and Web site capabilities were rated good. Hardware capabilities were rated midway between excellent and good. Although all associations have Web sites, comments on the survey indicated that several associations are in process of upgrading their Web sites to increase their capabilities (e.g. adding member only sections and staff having more ability to manage their Web site). A number of associations reported using their Web sites for members to renew membership, register for educational events, post association publications, provide access to membership directories and post recent news. Several associations commented on the significant potential benefits to association members in expanding the capabilities of their Web sites in terms of rapid and efficient communication. In addition to using Web sites to communicate with members, associations are using electronic mail (e-mail). Forty-three percent of the associations offer members the option of receiving the association’s publications and information electronically. In those associations that offer electronic distribution as an option, the percentages of members who choose to use it range from 20-85 percent. A median average of 85 percent of association members have provided e-mail to their association. It is unclear, however, to what extent these e-mail addresses are regularly used to communicate with members (e.g. how many members are on association mail lists to receive regular e-mailings). Three associations offer electronic or e-memberships that typically are graduate or undergraduate psychology students who receive only electronic association mailings. One of the survey questions asked about the extent to which associations use electronic communications and distribute meeting materials to association board members. A quarter of the associations surveyed require board members to have electronic communication capability. Half of the associations distribute board materials electronically. A fifth only distribute paper copies of board materials at the board meetings. A little more than half (58 percent) use both electronic and paper copies of materials for board meetings. Technology Priorities Association priorities for improving association technological capabilities and helping association members to become more aware and proficient in using technology are presented in Table 2 below: Table 2-Association Technology Priorities Improving Association Increasing Member Priority Technology Capabilities Technology Capabilities High 44% 22% Mid 30% 48% Low 26% 30% Nearly three fourths of the associations considered improving their technological capabilities to be either a high (44 percent) or a mid-level (30 percent) priority. About two-thirds rated helping association members to become more aware and proficient in the use of technology as either a high (22 percent) or mid-level (48 percent) priority. Association resources devoted to developing and promoting technology are generally limited. Only two out of 24 (8 percent) associations (Ohio and Kentucky) have committees with a purpose of educating members about the use of technology in psychology. A few association executive directors reported that they or other association staff spend some time on educating or training in this area. Some reasons for this appear to be limited available staff time, finances, other higher association priorities, lack of expressed interest by association members and, apparently in some states, the inability for psychologists to obtain licensing board approval for mandatory continuing education credit for technology related training. Associations that viewed this as a high priority typically had members expressing an interest in technology and reported recognizing this as a legitimate function of their association for educating psychologists that would improve their members practices, improve efficiency in communications with members and others, could save staff time and association finances and even attract new members. OPA REVIEW 13 Educational Activities A third of the associations reported to have presented or sponsored educational presentations, workshops or published articles in the past 12 months related to technology. These included workshops or presentations about such topics as HIPAA compliance, using specific software (e.g. Outlook, Word, PowerPoint), computer system maintenance, using Web sites (e.g. APA Portal, association Web site) and articles about technology “tips,” e-mailing attachments, basics about using personal computers and handheld computers, and Internet resources for psychologists. Thirty-eight percent of the associations indicated that they are planning educational activities related to technology during the next 12 months. These were similar to those reported for the past 12 months and included workshops and presentations about designing a Web site, using specific software programs and HIPAA compliance. One innovative state (Idaho) plans to jointly sponsor with a state counseling association a program about using FrontPage (a computer program for building Web sites). Two associations referred to the inability of their members to receive mandatory continuing education (MCE) for technology related educational activities. Although it is unclear if this is due to an explicit prohibition by regulatory boards, it may be an inhibiting factor for psychologists pursing such training. Continued on page 14 >
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The OP Review November 2005 - Ohio Psychological Association

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