Summary in Lieu of the Entire Medical Record
Written by Leslie S. Tsukroff, MSW, LCSW
Founder and Executive Director of Leslie S. Tsukroff, Inc.
In response to a records request, is it acceptable to write a summary instead?
Yes, as long as the client consents to receiving a summary in lieu of the complete medical record.
If you’ve attended any of my workshops that address documentation and record-keeping, you are aware that all clients (with some exceptions) have the legal and ethical right to access their own medical record and to deny, limit or grant access to others. But did you know that providing a written summary instead of the complete medical record is supported by federal laws (HIPAA and the 21st Century Cures Act) , many state and regulatory laws and professional Ethics Codes? That’s right, clients can request a written summary over the complete medical record and mental health professionals are permitted to comply with this request. Read on for more information.
When is it acceptable to provide a summary in response to a records request?
•When the client requests or consents to a summary in lieu of the full medical record.
•If the summary accurately reflects the information contained in the medical record (i.e. client’s symptoms, history, treatment and progress)
•If the mental health professional reasonably believes the medical record contains information that would negatively affect the client’s health or welfare or the health and well-being of another party named in the medical record.
Important factors to consider
•If the clinician decides it is in the best interest of the client or another party named in the medical record to omit information from the summary or provides a summary in lieu of the entire medical record, a written rationale for doing so should accompany the summary.
•Although not always required by law (check your state laws) or ethical guidelines, it is best practice for clients to request their own medical records/summaries in writing. (According to the New Jersey professional licensing regulations, NJ Social Workers are required to obtain this request in writing, while a NJ Psychologists and NJ Licensed Professional Counselors may accept records requests from clients in either format- verbally or in writing.
•Clients should provide consent to the specific information being released in the summary. Blanket authorizations to disclose “all records and information pertaining to the client/contained in the medical record” are too broad and violate “minimum necessary” standards outlined under HIPAA, state laws and ethics codes.
For example:
O In order to protect client confidentiality, HIPAA (45 C.F.R. § 164.502) states the clinician must make a reasonable effort to limit the disclosure of protected health information to the minimum necessary to achieve the intended purpose. @ https://www.govinfo.gov/content/pkg/CFR-2013-title45-vol1/pdf/CFR-2013-title45-vol1-sec164-502.pdf
O According to the NASW Code of Ethics, unless otherwise required by law, “Social workers should protect the confidentiality of all information obtained in the course of professional services” and “should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.” {1.07 Privacy and Confidentiality (c)}
Is it acceptable to charge a client for the cost of drafting a summary?
Yes, but clients must be informed of these fees up front and must consent to these fees.
•In New Jersey, all professional discipline’s licensing regulations permit their licensees to charge a reasonable fee for the preparation of a summary.
•The fee should not exceed the actual cost of photocopying or transcription.
•Clients should be provided information regarding the fees associated with drafting a summary and are required to consent to associated fees at the outset of the request. If not included already, it is strongly advised for all clinicians to add a section to their practice fee policy/agreement outlining the costs associated with release of records*/preparation of summaries.
*When complying with a request for the complete medical record, there are specific laws regarding fees for the e-record, how these requests are to be satisfied and acceptable timeframes for fulfilling these requests.
If I have a virtual only practice, can I charge the client for mailing the summary?
Yes, as long as the client is informed up front and consents to the costs associated with mailing the summary, you may charge the client the actual cost of mailing.
What if the client requests the summary be sent via e-mail or text?
If the client requests the summary be sent to them or another party through e-mail or text, then clinician is obligated to comply as long as certain conditions are met.
What if I don’t have a HIPAA secure means of transmitting the requested summary?
If the clinician does not have a HIPAA secure means of e-mailing or texting documents, they should advise their clients and discuss with them the inherent risks to confidentiality associated with e-mailing or texting sensitive documents through an unsecured channel.
What if, after advising them of the limits to confidentiality, they still insist on receiving the summary via unsecure e-mail or text?
HIPAA permits clients to request non-secure communications as long as they are advised of and fully comprehend the inherent risks involved in these types of transmissions and they accept these risks. Person Center Tech has a sample form @ https://personcenteredtech.com/ under "resources/free forms and resources"
Final Thoughts
• Research all laws and ethics codes. Due to the complexity of records requests/preparation of medical record summaries, varying state and federal laws and differing guidance based on professional disciplines, clinicians are urged to consult their specific state licensing regulations, all applicable state and federal laws, and guidance from their professional membership organizations and professional Ethics Codes for more detailed information on release of records, informed consent, confidentiality and access to records.
• Provide clients with the opportunity to review the summary prior to releasing it to a third party. This meets the ethical guidelines and legal mandates pertaining to informed consent and release of confidential information.
•Document, Document, Document. Remember to thoroughly and accurately document any and all communications with clients and third parties regarding the records/summary request. Clients should receive a final copy of the summary for their record-keeping (if summary is going directly to the third party) and a copy of the summary should be maintained as part of the medical record.
• Seek consultation whenever faced with medical records requests. When in doubt, seek consultation from a knowledgeable and reputable source. Professional liability carriers often provide free legal guidance to their policy holders and many professional membership organizations offer legal and ethics consultation to their members.
Leslie S. Tsukroff, Inc. offers consultations to help clinicians determine best course of actions upon receipt of a records request from clients and/or third parties.
This document is for general informational purposes only and is not intended to be used as advice (legal, ethical or technical) or as a substitute for the guidance of an attorney or an individualized consultation. It does not address all possible clinical, legal and ethical issues that may arise, nor does it take into consideration the particular circumstances, nuances or concerns of the situation or person(s) involved. Leslie S. Tsukroff, Inc. does not assume any responsibility or liability for any errors or omissions in its content.
© Leslie S. Tsukroff, Inc. 2021 (All Rights Reserved)
This article originally appeared in Leslie’s June 2021 Newsletter