The dreaded day has arrived and a subpoena has appeared in your office. There are many important steps on how to handle client confidentiality and what laws the clinician must follow when receiving a subpoena.
Because this situation activates anxiety for a lot of therapists, if you are unsure about next steps when you receive a subpoena, it is important that you please contact your state board and/or your association attorney for guidance on this.
However, the focus of this blog is to discuss the importance of including a clear policy and statement about court fees, documentation production, and letter writing, and how to include this in your informed consent forms.
First things first: Protect yourself
Over the years colleagues and coaching clients have shared that they feel frustrated when clients request letters and other court services outside of their therapy sessions. However, much of this angst can be alleviated by knowing what the laws are in your state, and then writing out your clinical policy accordingly.
When I explore this common frustration in more depth with consulting clients, what I often hear is, "Mari, I don't have a policy in place that outlines what I charge clients for court and materials related fees. And on top of that, I don't have anything written in my clinical intake forms, so I simply do it for free...I want to change this!"
If you are nodding in agreement, I feel your pain! I also left myself swinging in the wind the first couple of years in my practice many moons ago. As a wise woman once stated, "When we know better, we do better." I hope this information will help you "do better" in protecting yourself, honoring and valuing your out of session court time and fees, and sharing this with your clients in writing so that they truly have informed consent.
Treatment Records: What does your state say about fees?
First of all, you must be aware of what your state laws are with respect to "reasonable fees" regarding what you may charge for providing treatment records (if this is what you have been asked to do per the court or client). Many states have specific guidelines the therapist is required to follow for what their state deems as “reasonable” fees regarding administrative costs in providing clinical files.
For example, under California law you may charge only specific fees (please contact CAMFT or the BBS for more information if you are a clinician in California, or your state board if you are outside of California) to a client when responding to a subpoena or request for records.
However because each state may vary, the onus falls on you as the therapist to pick up the phone, or go on line and contact your state association and/or board to find out exactly what legal and ethical boundaries pertain to charging fees regarding treatment records. Again, please note that there are very strict regulations about what a therapist can charge a client who is requesting a copy of their clinical records.
The good news is that under the Health Insurance Portability and Accountability Act (HIPAA), "a covered entity can charge reasonable cost-based fees for providing medical records to patients (45 CFR 164.524(c))." What does this mean? It means that you will need to do the leg work to find out what those "reasonable fees" are in your state, and then list those out in your informed consent regarding charging fees for treatment records. Do not rely on a blog or website, no matter how well informed, to do the homework for you. Laws change, and the blog you may be reading might be outdated, or may not be relevant to your jurisdiction.
Another important point to keep in mind on the topic of treatment records is rather than copying records or files when subpoenaed, many therapists prefer to provide what is called a "Treatment Summary" vs. the clinical file. Again, this depends upon the legal parameters of the case, and without sounding like a broken record here, I cannot emphasize enough how wise it is to seek legal counsel should you receive a subpoena to ensure that you are covering all of your bases. My point in sharing about a treatment summary here is that a therapist is able to decide what feels like a reasonable fee for their practice when writing a treatment summary.
Moving On: The Court Fee Maze
OK, so what about fees outside of a request for clinical records or a treatment summary, such as court fees and/or letter and materials preparation fees?
As most of us are aware, a therapist in the US must disclose their fee to a client before the onset of treatment. Additionally, it is strongly suggested, and in some states required, for a therapist to clearly outline in their clinical forms their client clinical session fees. Thus, the same wisdom applies for letter preparation and court appearances - you must disclose what your court fees are in your informed consent forms at the start of therapy.
By not taking the time to carefully write out what your policy and fee is regarding letter prep, court prep and court appearances, you put your self at risk legally and ethically should the client take issue with the charge, or you may end up working many hours for free if you have not outlined this in the informed consent forms at the onset of a therapy relationship.
The good news is that a therapist may use his or her own discretion on what to charge the client for letter preparation, court preparation, and time out of practice for court appearances and other related court tasks. That said, keep in mind that it may not always be wise to simply charge an hourly rate for xyz amount of time - Why? Because a client may challenge this and/or the court prep and case may require more time than you anticipated.
In order to avoid conflict, to ethically cover one's time, and to be fairly compensated, you may want to consider charging a flat rate to the client that takes the following into consideration:
- Your time
- Your missed session fees should you have to cancel sessions to appear in court
- Your postage and shipping
- Your court prep time
- Your mileage
- Special considerations (child care, interrupting a vacation)
- Your court prep fee if you work with a coach who specializes in helping prepare therapists to appear in court (I love the great work Nicol Stolar-Peterson, LCSW, BCD, provides therapists with. Nicol is an expert witness and court performance coach and works with therapists to help them feel confident in court should they have to appear. Her website it: http://www.therapistcourtprep.com
A good rule to remember in any preparation process is that if you believe it will take you 30 minutes to write a letter or consult, it will likely take you twice that.
CYA: What to include in your informed consent
I understand that writing this policy into your informed consent is a time consuming process. However it is well worth the time to do so. Or if you prefer not to reinvent the wheel you can download my Complete Client Clinical Intake Forms Packet here which includes a section already written for you.
My forms packet is prepared in a word document so that you may download, brand with your own logo and practice information, and edit any of the forms or sections you wish should you decide to include different/more/less information. You can read what colleagues have to say about my materials here: http://www.thecounselorscoach.com/praise-for-products
More Helpful Tips
No matter how you decide to put your policy in place, I applaud you for doing so. If you enjoy writing and prefer to do this, as a support I have outlined what you may want to include in your informed consent policy. The fees must be decided by you (remember this does not include fees for clinical records as those are specified by each state).
IMPORTANT NOTE: You may want to consider obtaining a retainer in advance from the client (again, spell this out clearly in your forms) so that you are not attempting to collect these fees after the dust has settled. Here are things to consider writing in to your forms:
- Preparation time
- The minimum charge for a court appearance
- Mileage (check with your board/state/CPA) if you are required to drive back and forth to court
- Depositions you are required to attend (this also falls under mileage)
- Time required in giving testimony in court
- Time away from office and missed fees due to depositions or testimony
- All attorney fees and costs incurred by the therapist as a result of the legal action
- Filing a document with the court
- Time for phone calls you are required to return
Remember to check this with your attorney and state board before adding any of the above with your fee to your documentation.
TIP: One other special consideration is what you will charge if these kinds of requests interrupt a vacation or personal time.
For example, many, many years ago when I was new to private practice, during my sister's wedding week, a client involved in a serious custody battle requested that I speak with his attorney on the morning of my sister's wedding. Given the unique circumstances of this case, and after consulting with the CAMFT attorneys the day prior, it was recommend to me to speak with the client's attorney (of course a release was on file).
Though the timing could not have been worse on such a special day, it was important that I set aside time for this phone meeting. I only wish I would have had a court policy and consulting fee section in my informed consent forms that stated, "all of the listed fees are doubled if this therapist is out of town, or on vacation and must attend to these legal out of session requests."
Final Thoughts and Support
In closing, outside of each state's fees regarding what a clinician may charge for client file preparation, you must decide as the professional in charge of your practice what are fair and reasonable fees for court prep, appearance, out of office time, and letter preparation fees.
Four final and important reminders when preparing any documents, court related requests, or returning phone calls when working with a client:
1. Please carefully consider if writing such a letter places you in a dual role;
2. Always keep in mind client confidentiality;
3. Be sure that you have a release of information on file;
4. Consult your board or association attorney for legal counsel;
I hope this information has inspired you to write out a comprehensive court fee and documentation preparation policy to include as part of your informed consent forms.
Your time is valuable and you deserve to be compensated for the hard work you do and the support you provide to your clients. In turn, your clients deserve to clearly understand what fees they will be charged.
If you would like to connect with me, you may contact me at firstname.lastname@example.org, or if you would like to schedule a consulting call, you may do so here.
Kindly and in support,
Mari A. Lee, LMFT, CSAT-S