WSR 05-13-187

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed June 22, 2005, 8:46 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-05-020.

Title of Rule and Other Identifying Information: WAC 246-924-354 Maintenance and retention of records for psychologists.

Hearing Location(s): Department of Health, 310 Israel Road, Room #153, Tumwater, WA 98501, on July 29, 2005, at 9:30 a.m.

Date of Intended Adoption: July 29, 2005.

Submit Written Comments to: Janice K. Boden, Program Manager, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, e-mail www3.doh.wa.gov/policyreview/, fax (360) 236-4909, by July 15, 2005.

Assistance for Persons with Disabilities: Contact Janice K. Boden at (360) 236-4912, by July 15, 2005, TTY (800) 833-6388.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposal amends WAC 246-924-354 Maintenance and retention of records, by establishing minimum retention periods for client records and requiring psychologists to establish an office policy identifying how client records will be maintained in the event that the psychologist is no longer practicing.

The anticipated effects of this change are that clients' psychological records will be retained for an adequate period of time and each psychologist will have a plan in place to protect those records and allow appropriate access to them after the psychologist is no longer practicing.

Reasons Supporting Proposal: This rule will help psychologists manage client records in a way that ensures adequate retention and client access.

Statutory Authority for Adoption: RCW 18.83.050, 18.130.050.

Statute Being Implemented: RCW 18.130.050.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington State Examining Board of Psychology, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Janice K. Boden, 310 Israel Road S.E., Tumwater, WA 98501, (360) 236-4912.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Briefly Describe the Proposed Rule: The proposed rule amendment seeks to protect the public by setting standards for licensed psychologists concerning client records retention and access. Specifically, the proposal:

Clarifies wording.
Requires all records be retained for a minimum of eight years following the last professional contact with the client(s).
Within this eight-year period all records must be maintained securely with proper limited access and in accordance with any other applicable state or federal laws.
In the case of minors under the age of eighteen, the records must be retained until the client reaches the age of twenty-two or for eight years, whichever is longer.
Requires the psychologist rendering services to have a written policy to ensure the maintenance and confidentiality of the client records in the event of retirement, discontinuation of practice or employment, discontinuation of practice in Washington, or inability to maintain practice or employment (e.g., illness or death of the psychologist).
This written policy must be made available to the board, upon written request, within sixty days.
The written policy shall specify:
&sqbul; A qualified person(s) or, if appropriate, hospital, clinic or other health care facility, to make necessary clinically relevant referrals if the psychologist is unable to do so.
&sqbul; A plan for fulfilling record requests described under this subsection.
&sqbul; That the subsequent record holder maintain records in accordance with any other applicable state or federal laws or rules.
&sqbul; In the case of psychological or neuropsychological evaluations, tests or assessments, the psychologist may exercise clinical judgment in determining whether or not to retain specific records beyond the minimum retention period specified in the rule.
2. Is a Small Business Economic Impact Statement (SBEIS) Required for this Rule? Yes. An SBEIS is required because the rule imposes more than minor costs on the industry.

3. Which Industries are Affected by this Rule? In preparing this SBEIS, the Department of Health identified the following SIC codes based on input from stakeholders:


Table 1

Avg. Avg.
No. of No. of Employees Employees
Description Units Employees < 50 Top 10% Threshold ($)
Skilled nursing care facilities 281 26,407 15 116 195.64
Psychiatric hospitals 6 3,177 147 NA
Colleges and universities 124 43,952 7 1,274 66.1
Individual and family services 1,261 29,061 9 181 66.1
Social services, nec 372 3,400 5 61 66.1

4. What are the Costs of Complying with this Rule for Small Businesses (Those with Fifty or Fewer Employees) and for the Largest 10% of Businesses Affected?

1. Retention and maintenance of records (WAC 246-924-354 (2) and (3)): The proposed rule amendment does not add additional costs for retaining records. Practitioners are already creating and maintaining records. Some of the records are stored electronically and some are stored in file cabinets or storage boxes. There are no costs associated with the proposed requirement of maintaining records for a minimum of eight years. Practitioners are already creating records for clients; therefore, this rule does not add an additional cost. Many practitioners are currently retaining records for longer than eight years; those individuals may actually see a reduction in costs under the new rule.

The benefits associated from the proposed rule amendment include the clarification of the duration psychologists must retain and maintain client records and possible savings for psychologists that retain and maintain records longer than eight years. Currently, psychology records are maintained for a duration of time that is at the discretion of the psychologist. This time can vary significantly depending on factors such as specialty area of practice and number of clients. The common standard among practitioners is ten years. However, numerous practitioners retain and maintain records for a much longer period. Few practitioners retain records for less than five years.

2. Creation of the written policy (WAC 246-924-354(3)): The cost associated with development of a written policy is minimal and can be easily absorbed by the practitioner. The proposed rule amendment provides the framework for the policy language which can then be easily modified by the practitioner into their individual policy. The Department of Health assumes that a psychologist can generate the policy in one hour. The average psychologist in Washington earns $140 per hour. The total cost to generate the policy is $140.

Associated benefits of the proposed rule amendment ensures the maintenance and confidentiality of the client records in the event of retirement, discontinuation of practice or employment, discontinuation of practice in the state of Washington, or inability to maintain practice or employment. Currently, no such written policy is required to maintain psychology records. The board wanted to allow each psychologist the flexibility to create records management practices that make sense to that individual. There are several other statutes and regulations such as chapter 70.02 RCW, Health Care Information Act, and Health Insurance Portability and Accountability Act (HIPAA) that the psychologist must abide by concerning confidentiality, electronic transmission, and maintenance of client records. The proposed rule amendment is not intended to be all inclusive of these requirements.

3. The written policy must be made available to the board, upon written request, within sixty days: The cost associated with providing a copy of the written policy is minimal: Salary and benefits for clerical staff processing time, photo copying cost for one or two pages, cost of envelope and postage. The benefit of providing the policy to the board is to increase likelihood of compliance and to give the board the authority to request the policy if the board receives a complaint about a practitioner. The benefit of the proposed rule amendment outweighs the minimal cost.

5. Does the Rule Impose a Disproportionate Impact on Small Businesses? Assuming each licensed psychologist is responsible for the retention and maintenance of his/her client records, the proposed changes to the rule do not impose a disproportionate impact on small businesses. The cost is the same for psychologists in both small and large businesses.

However, the possibility of a disproportionate impact on small businesses may exist. This is based on the assumption that large businesses provide record retention facilities free of charge for their psychologists. Psychologists that are employed at federal, state, or local agencies are practicing in settings that are exempt from various state regulations regarding individual practitioners. The agency is responsible for the records.

Psychologists that work in a clinic setting may maintain client records individually or collectively depending upon factors such as employee/employer relationships, articles of incorporation, or individual agreements within the clinic.

6. How are Small Businesses Involved in the Development of this Rule? Approximately two-thirds of the practitioners are practicing in settings that the Department of Health considers small businesses. All licensed psychologists were informed through newsletters and meeting minutes. Their comments were requested during the comment period. Phone call inquiries were addressed as received.

A copy of the statement may be obtained by contacting Janice K. Boden, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, phone (360) 236-4912, fax (360) 236-4909, e-mail janice.boden@doh.wa.gov.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Janice K. Boden, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, phone (360) 236-4912, fax (360) 236-4909, e-mail janice.boden@doh.wa.gov.

April 15, 2005

Janice K. Boden

Program Manager

OTS-6929.3


AMENDATORY SECTION(Amending Order 337B, filed 3/10/93, effective 4/10/93)

WAC 246-924-354   Maintenance and retention of records.   (1) ((The)) A psychologist ((rendering)) who renders professional services to a client or clients, or ((rendering)) renders services billed to a third party payor, shall document services except as provided in (g) of this subsection. ((That)) The documentation ((shall)) must include:

(a) The presenting problem(s), purpose, or diagnosis;

(b) The fee arrangement;

(c) The date and service provided;

(d) A copy of all tests and evaluative reports prepared;

(e) Notation and results of formal consults including information obtained from other persons or agencies through a release of information;

(f) Progress notes reflecting on-going treatment and current status; and

(g) If a client requests that no treatment records be kept and the psychologist agrees to the request, the client's request must be in writing and ((only)) retained with the following ((must be retained)) information:

(i) Identity of the recipient of the services;

(ii) Service dates and fees;

(iii) Description of services;

(iv) ((Written request that no records be kept.

(2))) The psychologist shall not agree to the request if maintaining records is required by other state or federal law.

(2) All records must be retained for at least eight years following the last professional contact with the client(s). In the case of minors under the age of eighteen, the records must be retained until the client reaches the age of twenty-two or for eight years, whichever is longer.

All records must be securely maintained with appropriate limited access in accordance with any other applicable state or federal laws.

(3) The psychologist rendering services must have a written policy to ensure the maintenance and confidentiality of the client records in the event of retirement, discontinuation of practice or employment, discontinuation of practice in the state of Washington, or inability to maintain practice or employment (e.g., illness or death of the psychologist).

This written policy must be made available to the board, upon written request, within sixty days. The written policy shall:

(a) Designate a qualified person(s) or, if appropriate, hospital, clinic or other health care facility, to make necessary clinically relevant referrals if the psychologist is unable to do so;

(b) Detail a plan for fulfilling record requests described under this subsection; and

(c) Require the subsequent record holder to maintain records in accordance with any other applicable state or federal laws or rules.

(4) In the case of psychological or neuropsychological evaluations, tests or assessments, the psychologist may exercise clinical judgment in determining whether or not to retain specific records beyond the minimum retention period specified in subsection (2) of this section.

(5) After the minimum records retention period is met for a client record, the psychologist may elect to dispose of the record. If the record is disposed of, it shall be done in a secure and confidential manner. Proper disposal means paper is shredded; electronic media is deleted, erased, or reformatted; and other readable forms of media is defaced or rendered unusable or unreadable.

[Statutory Authority: RCW 18.83.050(5) and chapter 18.83 RCW. 93-07-036 (Order 337B), 246-924-354, filed 3/10/93, effective 4/10/93.]

Washington State Code Reviser's Office