Legal & Regulatory Issues

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Goldstein (Ca. App. 4,. 2004), approximately 25 years after Tarasoff, a court ..... Human development, diversity, and behavior in ... swift action when needed.
Legal & Regulatory Issues Editor’s Commentary Duty to Warn: The Case Manager’s Role Lynn S. Muller, RN, BA-HCM, CCM, JD

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s this column went to press, the nation was still reeling from the horrific news of 26 deaths, 20 of whom were children younger than 10 years, in Newtown, CT, at the hand of a single gunman. Since that time much has been said regarding gun control, civil rights, and mental illness. In this department, we focus on the role of the case manager as it relates to public safety and reexamine the so-called “duty to warn” as proclaimed by the California Supreme Court in 1976 in the case of Tarasoff v. Regents University of California. The Tarasoff Court held: When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim

Do you have a question or issue you would like addressed here? We welcome and encourage all readers to submit questions and/ or manuscripts, as well as topics they would like to see addressed in this department. Questions and other inquiries are accepted by e-mail at: [email protected]. Disclaimer: The information contained in this department is for educational purposes only. It is not legal advice, which can be given only by an attorney admitted to practice in the jurisdiction/ state(s) in which you practice. Address correspondence to Lynn S. Muller, RN, BA-HCM, CCM, JD, Esq., Muller & Muller, 15 West Main Street, Suite C, P.O. Box 164, Bergenfield, NJ 07621 ([email protected]). The authors report no conflicts of interest. DOI: 10.1097/NCM.0b013e318289fa01

of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. Tarasoff v. Regents University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).

The questions that present themselves for case managers are many. • Does the duty to warn apply to us because the Tarasoff case was about a school psychiatrist? • Has the Health Insurance Portability and Accountability Act (HIPAA) changed anything? • Is the Tarasoff Doctrine of “duty to warn” still the law? In all states? • What if the threat is not specific to an individual person? • Which is more pressing: privacy and confidentiality, or the duty to warn? We start with the basic premise that whether by Federal Law, state statute, or Code of Professional Ethics, the one-to-one dialogue between a medical professional and his or her patient is confidential, which is distinguished from privileged, having to do with the admissibility of such information in a court of law. We can also agree that psychotherapy notes and their content are given additional privacy to preserve the therapeutic relationship and assure patients that they may speak freely to further their treatment. That having been said, there is no doubt that if you are a health care professional and you are aware that someone is in imminent danger, there is no question that you have duty to warn. This simple concept becomes more complicated by your state of licensure and a myriad of laws, rules, and regulations, each with their own purpose. The question is whether there is an appropriate case scenario that falls short of immediate notification to a police authority, an entity (such as a school, hospital, or agency), or an individual, when otherwise confidential information should be explored, initially in an informal manner with the assistance or consultation of a colleague. Is there something that precedes, supplements, or, in some cases, replaces a duty to warn? Professional Case Management 1

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Legal & Regulatory Issues … That having been said, there is no doubt that if you are a health care professional and you are aware that someone is in imminent danger, there is no question that you have duty to warn.

The case scenarios that come to mind are simple on the surface. You’re meeting with a client (old or new) and the discussion drifts to his or her frustration with _________ (i.e., parents, children, neighbors, local or distant government officials, ethnic or religious groups, the aged), in other words, any group, large or small, that can be vaguely or specifically identified. How specific does the description have to be to elicit “duty to warn” action? Did the suspect in the Aurora, Colorado Movie Theater massacre ever tell his therapist or counselor of his fascination with dark villains, firearms, costumes, or the midnight showing of a super hero movie? Any piece or two of such information might seem innocuous on its own, but if more than one professional, each a piece that is causing them concern or that “sick feeling in your professionally trained gut” and consulting appropriately about their collective client, could lives have been saved?

Learning From Past Events The therapist treating James Holmes prior to the 2012 Aurora Theatre shooting was alarmed enough by his behavior to alert the University of Colorado’s threat assessment committee. The committee chose not to pursue the issue because Holmes had recently dropped out of school. Now that decision looks like it may have been incorrect. Having lived through the 2007 Virginia Tech Shooting, the deputy chief of police at Virginia Tech and head of the school’s threat assessment team, would say, the University of Colorado team was wrong (Katz, 2012). It is very easy to say what someone should have done after the fact. A better way of viewing this type of “Monday Morning Quarterbacking” is to use such events as teaching moments, opportunities for reexamination of a difficult issue, and thoughtful revision of policies and procedures, if needed. However, the best policies and procedures in the world are not effective if they’re not followed. Remember that whether we are examining HIPAA privacy rights or driving a vehicle in a prudent manner, the law is always a minimum mandatory standard. When the

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facts and circumstances change, like icy roads, one can always be more careful and adapt behavior (“the rules”) to the changed circumstances. If there’s even one step we can take to save another child or another parent or another town from the grief that’s visited Tucson and Aurora and Oak Creek and Newtown and communities from Columbine to Blacksburg before that, then surely we have an obligation to try. (Obama, 2012)

On January 16, 2013, President Obama announced 23 proposals to better protect children and address the serious problem of gun violence across the county. The proposals were the product of high-level discussions, conducted by the task force led by the Vice President. In the list of Executive Actions, signed by the President, two directly affect health care. The first is to “Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes” and the second is “Releasing a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities” (Obama, 2013). That letter was immediately released and follows this article (see the Appendix). In addition, there will be much action going forward on how we, as a nation, address mental illness. It is incumbent upon case managers, as members of the health care community, to be vigilant through communication by and with professional licensing boards and professional organizations to learn of any forthcoming changes to current professional duties and obligations.

Law and Cases When analyzing cases and statutes that impact “Duty to Warn,” it is essential that you look to the purpose of the rule. Is the law intending to save lives or to shield either a potential victim or health care professional from monetary consequences in a lawsuit? In the California case of Ewing v. Goldstein (Ca. App. 4, 2004), approximately 25 years after Tarasoff, a court was caused to determine whether there was civil liability (malpractice) for failure to warn one member of a family regarding a threat made by another member

“If there’s even one step we can take to save another child or another parent or another town from the grief that’s visited Tucson and Aurora and Oak Creek and Newtown and communities from Columbine to Blacksburg before that, then surely we have an obligation to try.”

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Legal & Regulatory Issues of that family; the potential victim was not a patient of the therapist. First, the court had to determine whether the “duty to warn” extended to a communication from a family member and not directly from the patient. At the trial level, the court found that it did not. On appeal, the Appellate Court held that the duty to warn included “a communication from a family member to a therapist, made for the purpose of advancing a patient’s therapy, is a “patient communication” within the meaning of section 43.92. Second, a therapist’s duty to warn a victim arises if the information communicated leads the therapist to believe or predict that the patient poses a serious risk of grave bodily injury to another” (Ewing v. Goldstein 120 Cal. App. 4th 807[2004]). The issue was the application of a statute to the unique facts of one case. In the relevant part, the statute states: There shall be no monetary liability on the part of, and no cause of action shall arise against, any… psychotherapist… in failing to warn of and protect patient’s threatened violence behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. (California Civil Code Section 43.92)

“After examining the legislative history and their intent, it was concluded that the communication from a patient’s family member to the patient’s therapist made for the purpose of advancing the patient’s therapy is to be considered a patient communication within the meaning of Section 43.92. In formulating their opinion, this Court felt the privacy interests did not supersede the disclosure of a patient’s confidence

when it is necessary to avert serious physical harm to another person.” In an interesting 2006 New Jersey Supreme Court Case, the Court held that the statute (N.J.S.A. 2A:62A-16) that otherwise protects health care practitioners from liability for malpractice in patient suicide cases did not bar suit against a psychiatrist who abandoned a severely depressed patient and failed to treat the patient consistent with accepted standards of practice (Marshall v. Klebanov, 188 N.J. 23 [2006]). From the case decisions and the language of state statutes, it appears clear that all health care professionals, including case managers (based upon their profession of origin), share the duty to warn with their psychotherapy colleagues. As an example, the New Jersey statue, N.J.S.A. 2A:62A-16, provides expressly that nurses, social workers, and physicians (of any specialty or general practice) are responsible to warn a potential victim and/or law enforcement, along with other options for safe intervention. From its inception, 17 years ago and with its The Health Information Technology for Economic and Clinical Health Act amendments, HIPAA has provided exceptions for necessary disclosures of protected health information to law enforcement, public health authorities, etc, when individual or public safety is at risk. HIPAA has always been and continues to be clear about its intent, which does not preclude one’s Duty to Warn. The Office of Civil Rights Director, Leon Rodriguez, published a focused letter in response and was quite clear: “But there is public confusion about whether federal law prohibits such reports about threats of violence. … No federal law prohibits these reports in any way” (Rodriguez, 2013).

N.J.S.A. 2A:62A-16 Medical or Counseling Practitioner’s Immunity From Civil Liability 1. a. Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work, or marriage counseling, whether or not compensation is received or expected, is immune from any civil liability for a patient’s violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this section and fails to discharge that duty as set forth in subsection c. of this section. b. A duty to warn and protect is incurred when the following conditions exist: (1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out the threat; or (2) The circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself. c. A licensed practitioner of psychology, psychiatry, medicine, nursing, clinical social work, or marriage counseling shall discharge the duty to warn and protect as set forth in subsection b. of this section by doing any one or more of the following:

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Legal & Regulatory Issues (1) Arranging for the patient to be admitted voluntarily to a psychiatric unit of a general hospital, a short-term care facility, a special psychiatric hospital, or a psychiatric facility, under the provisions of P.L. 1987, c.116 (C.30:4–27.1 et seq.); (2) Initiating procedures for involuntary commitment to treatment of the patient to an outpatient treatment provider, a short-term care facility, a special psychiatric hospital, or a psychiatric facility, under the provisions of P.L. 1987, c.116 (C.30:4–27.1 et seq.); (3) Advising a local law enforcement authority of the patient’s threat and the identity of the intended victim; (4) Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of 18, warning the parent or guardian of the intended victim; or (5) If the patient is under the age of 18 and threatens to commit suicide or bodily injury upon himself, warning the parent or guardian of the patient. d. A practitioner who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work, or marriage counseling who, in complying with subsection c. of this section, discloses a privileged communication, is immune from civil liability in regard to that disclosure. Mental Health Code (Excerpt) Act 258 of 1974 330.1946 Threat of physical violence against third person; duties. Sec. 946. (1) If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in subsection (2). Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person. (2) A mental health professional has discharged the duty created under subsection (1) if the mental health professional, subsequent to the threat, does 1 or more of the following in a timely manner: (a) Hospitalizes the patient or initiates proceedings to hospitalize the patient under chapter 4 or 4a. (b) Makes a reasonable attempt to communicate the threat to the third person and communicates the threat to the local police department or county sheriff for the area where the third person resides or for the area where the patient resides, or to the state police. (c) If the mental health professional has reason to believe that the third person who is threatened is a minor or is incompetent by other than age takes the steps set forth in subdivision (b) and communicates the threat to the department of social services in the county where the minor resides and to the third person’s custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in the best interests of the third person. (3) If a patient described in subsection (1) is being treated through team treatment in a hospital, and if the individual in charge of the patient’s treatment decides to discharge the duty created in subsection (1) by a means described in subsection (2)(b) or (c), the hospital shall designate an individual to communicate the threat to the necessary persons. (4) A mental health professional who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 750. A psychiatrist who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate the physician–patient privilege established under section 2157 of the revised Judicature Act of 1961, Act No. 236 of the Public Acts of 1961, being section 600.2157 of the Michigan Compiled Laws. A psychologist who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 18237 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.18237 of the Michigan Compiled Laws. A certified social

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Legal & Regulatory Issues worker, social worker, or social worker technician who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 1610 of the occupational code, Act No. 299 of the Public Acts of 1980, being section 339.1610 of the Michigan Compiled Laws. A licensed professional counselor who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 18117 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.18117 of the Michigan Compiled Laws. A marriage and family therapist who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 1509 of the occupational code, Act No. 299 of the Public Acts of 1980, being section 339.1509 of the Michigan Compiled Laws. A music therapist who determines in good faith that a particular situation presents a duty under this section and who complies with this duty does not violate section 4.11 of the professional code of ethics of the National Association for Music Therapy, Inc., or the clinical relationships section of the code of ethics of the certification board for music therapists. (5) This section does not affect a duty a mental health professional may have under any other section of law (Michigan Compiled Laws, 2012). When determining whether to disclose a threat, there is no need to disclose the entire content of the confidential communications, only the minimum necessary information to inform and protect a potential victim. For example, it would not be necessary to disclose the cause of one’s upset, unless having that information would assist a potential victim and/or law enforcement to appropriately intervene. Most state statutes that have codified the duty to warn do not offer any other alternative but to warn the victim. There is no duty to have a person arrested, committed, or detained. Is it to ask the patient, “Do you feel like hurting yourself or someone else?” Is a negative response to that question dispositive? I would suggest it is only a starting point and one must take all of the dialogue presented along with the situation from the patient’s viewpoint. “The duty to warn and protect arises only in the context of communicated or perceived ‘imminent, serious physical violence’ against the patient himself or against another.” N.J.S.A. 2A:62A-16b. “Under this statute, a mental health practitioner who incurs a duty to ‘warn and protect’, because the threat of violence is imminent, can be liable for failing to discharge that duty in the manner specified. The practitioner who has not incurred a duty to ‘warn and protect’ under the statute is not liable for failure to ‘warn and protect’, but can be liable for other deviations from the accepted standard of care that are proximate causes of a patient’s violent act or suicide” (Marshall v. Klebanov, 378 N.J. Super. 371,379 [App. Div. 2005]). There has been gross confusion by many over the years, about Duty to Warn as a breach of patient/practitioner trust. This has contributed to a wide disparity in how many understand and implement Duty to Warn. I see the current times, as unfortunate as the events have played out, as an opportunity to enforce practitioner accountability for this process: for those who may have not always moved forward, sought appropriate mentoring or guidance to define whether to report or not, for those who may have questions about the ethical and/or legal parameters of the scope of their authority in these situations. (Fink-Samnick, 2013)

What the Case Manager Needs to Know As with all rules, there are also exceptions. Texas, as an example, has no statutory duty to warn or protect. In the case of duty to warn, it is incumbent upon the case manager to look to his or her state of licensure, certifying body, Standards of Practice from both the Case Management Society of America, and your professional organization, such as the American Nurses

Association, National Association of Social Workers, or the American Medical Association, whether you’re a member or not. Whatever your underlying profession, there are Codes of Ethics and Standards of Practice that you must remain fully familiar with. With case management’s “big picture” approach to practice, it is essential that the case manager look to multiple legal, regulatory, and professional standards to ensure compliance. In the article that follows, you will see a fresh approach to the difficult problem of duty to warn and the introduction to “duty to act,” a template for cautionary and prudent professional action.

REFERENCES Fink-Samnick, E. (2013, January 19). Expert analysis. (L. S. Muller, Interviewer). Katz, D. (2012, August 6). Did U of Colorado have a duty to warn about Holmes? Retrieved December 21, 2012, from FindLaw: http://blogs.findlaw.com/ injured/2012/08/did-u-of-colorado-have-a-duty-towarn-about-holmes.html Professional Case Management 5

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Legal & Regulatory Issues Michigan Compiled Laws. (2012). Retrieved January 2, 2013, from Michigan Legislative website: http://www. legislature.mi.gov/(S(wz2g40rilfrr5u45xzpf5355))/ mileg.aspx?page=GetObject&objectname=mcl-3301946 Obama, President B. (2012, December 16). President addresses Interfaith Service. Newtown, CT. Obama, B. (2013, January 16). Remarks by the president and the vice president on gun violence. Retrieved January 19, 2013, from The White House: http://www. whitehouse.gov/the-press-office/2013/01/16/remarkspresident-and-vice-president-gun-violence Rodriguez, L. (2013, January 15). Letter to nation’s health care providers. Retrieved January 19, 2013, from Department of Health and Human Services: http:// www.hhs.gov/ocr/office/lettertonationhcp.pdf Lynn S. Muller, RN, BA-HCM, CCM, JD, is a Nurse Attorney and managing partner of Muller & Muller. She is an Adjunct Professor in the Doctor of Nursing Practice program at Saint Peter’s University of New Jersey. Lynn is a certified case manager with extensive nursing and case management experience. Her practice includes defense of health care professionals before the state licensing boards, consultant on such issues as regulatory compliance and accreditation, civil litigation, Wills, Trusts and Estates, and Family law. Lynn is the author of numerous articles and the legal chapters of the 3rd edition of Case Management: A Practical Guide for Education and Practice and the 2nd edition of the Case Management Society of America Core Curriculum for Case Management. She is a former Commissioner for CCMC and a past president of the NJ Chapter of Case Management Society of America.

Duty to Act: A Comprehensive Process in Proceeding With Duty to Warn Ellen Fink-Samnick, MSW, ACSW, LCSW, CCM, CRP

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ocietal dialogues following mass shootings follow a similar unfortunate cycle: initial horror and tragedy transition to personal/professional outrage, mourning, and ultimately blame. Macrosystem factors of needed legislation, vested stakeholder interest, and budgeting for social needs intersect with microsystem challenges of access to and payment for delivery of appropriate mental health intervention, not to mention weapon rights and necessary controls. There is usually focus on the licensed practitioners who have intervened with the designated perpetrator(s), plus their Duty to Warn in accordance with professional regulations. Whether Columbine, Virginia Tech, Tucson, Aurora, or Newtown, the dialogues settle somewhat over time until replaced by yet another occurrence, 6

which is as devastating in scope, if not more so, than its predecessors. To enhance my reflective processing of these all too seemingly more frequent events, I often turn to discussions with colleagues. This provides an opportunity to reframe my raw and intense emotion into purposeful and strategic action. In considering the issue of Duty to Warn, many thoughts emerged for me, particularly an interchange I had with another professional during a training I gave last fall. The audience comprised experienced licensed mental health professionals and the topic was mandated ethical responsibilities. One of the attendees voiced frustration with the current framing of Duty to Warn, suggesting that it was insufficient to address the issues at hand. There was agreement that most professionals were aware of their profound ethical plus legal mandate to reveal confidential information about clients when concern(s) about the client(s) being harmful to themselves or others is evidenced. The assorted codes of conduct, professional standards, and more significantly the practice regulations are clear to this end. The majority of attendees understood their primary accountability to public safety, especially in the context of privacy and confidentiality. However, the discussion transitioned to promoting greater emphasis on a sequenced and more comprehensive process branded as Duty to Act. This is opposed to what may often present as solely the fulfillment of professional obligation and/or due diligence, with what we know as Duty to Warn. Equal, if not greater attention is warranted to ensure competence with the integral elements that may accompany and support one’s ability to implement Duty to Warn. Of particular notice are the fundamentals of critical thinking, ethical decision-making, and supervisory consultation. It is common knowledge that codes of ethical and professional conduct, plus standards of practice, do not dictate a defined course of action or a set of rules to prescribe how the professionals represented should act in all situations. Instead, they frame a licensed professional’s: • Responsibility as paramount in situations where concern is for public safety (Commission for Case Manager Certification, 2009). • A set of values, principles, and standards to guide decision making and conduct when ethical issues arise (National Association of Social Workers, 2008). • Responsibility to maintain competence in their area of practice through compliance with national and/or local laws and regulations that apply to the jurisdiction(s) and discipline(s) in which the case manager practices (Case Management Society of America, 2011).

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Legal & Regulatory Issues The primacy of an overall process, which empowers the Duty to Act through inclusion of the core competencies of professional practice, is noted in the literature. In many states, mental health practitioners are protected from litigation when they follow mandated reporting guidelines. A careful and thorough assessment and consultation with a supervisor are often the first steps in making an appropriate plan of action (Corwin, 2007). The stakes present as even higher these days where increased assessments are being conducted by licensed professionals remotely or in cyberspace or both. Telehealth initiatives continue their swift growth, with revenue expected to increase by 55% in 2013 (Dolan, 2012). There has never been a time when the core competencies for licensed practitioners have been more highly coveted as tools to minimize risk and liability. Their value toward maximizing their professional accountability cannot be overstated. One can be accountable only for one’s own intervention and assessment (Fink-Samnick, 2008). For nursing and social work, the core competencies list is expansive and ever-changing, depending on the source, whether state licensing statute, professional association, administrative regulation, or accreditation organization. It includes, but is not limited to: • Assessing the client for risk of imminent danger and taking appropriate and necessary action to protect the safety of the client, others, the public, and the social worker when necessary • Professional identity and ethics • Applicant uses supervision and shows continuing development of clinical skills. • Applicant demonstrates knowledge of strengths and limitations of a clinical social worker and the distinctive contributions of other mental health and health care professionals. • Applicant makes appropriate referrals to other health providers and resources in the community. • Applicant knows and understands the laws related to life-threatening situations, child abuse, elder abuse, physical abuse, etc. • Applicant understands and has discussed the ethics of confidentiality and other legal and ethical issues. (Virginia Board of Social Work, 2012) • Critical thinking and analysis • Client assessment • Ethics • Legal (Case Management Society of America, 2011)

“This updated rendering of Duty to Act offers a more accurate focus for today’s licensed professionals, including case managers. It validates the importance of seeking counsel and guidance from mentors and/or other relevant professionals.”

• Assessment of mental and behavioral disorders • Human development, diversity, and behavior in the environment Assessment, diagnosis, and treatment planning • Intervention • Consultation and interdisciplinary collaboration • Professional ethics and values (Association of Social Work Boards, 2012) In defining core elements for Duty to Act, a template could consist of any, if not all of the above, areas. The power of individual client/patient assessment, critical thinking, seeking consultation, and interdisciplinary perspective, all while acknowledging ethics and legal components each serve to reinforce a professional’s potential Duty to Warn. We may very well see new more restrictive laws and regulations in the wake of the shooting deaths of 2012 and before, but the necessary tools are already in our hands. Critical thinking and a template of ethical decision making are the step-off points to sound consultation and swift action when needed.

Conclusion This updated rendering of Duty to Act offers a more accurate focus for today’s licensed professionals, including case managers. It validates the importance of seeking counsel and guidance from mentors and/ or other relevant professionals. Duty to Act is not an obligatory end game nor does it excuse professionals from directly contacting law enforcement or other agencies. Instead, Duty to Act emphasizes the importance of a more comprehensive process serving as valuable reinforcement of critical thinking, plus the other integral competencies in defining whether and/or how one proceeds with Duty to Warn; competencies that each licensed professional is mandated to demonstrate mastery of through licensure and/or certification, with timeliness as a key element. Brushing an uncomfortable dialogue off as “not my job” has led to horrific consequences. Enhancing confidence in one’s competencies can make all the difference in securing one’s ethical and legal framing amid the challenges posed by Duty to Warn.

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Legal & Regulatory Issues REFERENCES Association of Social Work Boards. (2012). Exam outlines FAQ’s. Retrieved January 1, 2013, from http://www. aswb.org/SWLE/2011examoutlines.asp Case Management Society of America. (2011). Standards of practice for case management. Retrieved January 1, 2013, from http://www.cmsa.org/SOP Commission for Case Manager Certification. (2009). Code of professional conduct for case managers with standards, rules, procedures. Retrieved December 31, 2012, from http://ccmcertification.org/content/ccm-exam-portal/ code-professional-conduct-case-managers Corwin, J. (2007). Confidentiality & the duty to warn: Ethical and legal implications for the therapeutic relationship. The New Social Worker Online. Retrieved December 31, 2012, from http://www.socialworker.com/ home/Feature_Articles/Ethics/Confidentiality_%26_ the_Duty_to_Warn%3A_Ethical_and_Legal_Implications_for_the_Therapeutic_Relationship/ Dolan, B. (2012). Telehealth revenues to grow 55% in 2013. Mobile Health News. Retrieved January 1, 2013, from http://mobihealthnews.com/19662/telehealth-revenues-to-grow-55-percent-in-2013/ Fink-Samnick, E. (2008). Practicing effectively amid ineffectiveness & other lessons of accountability for the

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new health and human services professional. Professional Case Management, 13(2), 106–109. National Association of Social Workers. (2008). NASW code of ethics. Retrieved January 1, 2013, from http:// www.socialworkers.org/pubs/code/default.asp The Virginia Board of Social Work. (2012). Verification of clinical supervision. Retrieved January 1, 2013, from http://www.dhp.virginia.gov/social/social_forms. htm#LCSW

Ellen Fink-Samnick, MSW, ACSW, LCSW, CCM, CRP, Principal of EFS Supervision Strategies, LLC, is a health care industry expert who empowers the Transdisciplinary workforce’s competencies through professional speaking, mentoring, and consultation. Ellen is adjunct faculty for George Mason University’s College of Health & Human Services, trainer for the National Association of Social Workers, Director of Social Work education for Athena Forums, Social Media Moderator for Ellen’s Ethical Lens, and Editorial Board Member for Lippincott’s Professional Case Management. Ellen is a past commissioner and chair of the Ethics & Professional Conduct Committee for the Commission for Case Manager Certification (CCMC). She has served as an Exam Item writer for the Association of Social Work Boards and CCMC, plus a contributor to CMSA’s Career and Knowledge Pathways Project. She is a certified case manager, licensed clinical social worker, and certified rehabilitation provider.

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Legal & Regulatory Issues Appendix DEPARTMENT OF HEALTH & HUMAN SERVICES

Office of the Secretary

Director Office for Civil Rights Washington, D.C. 20201

January 15, 2013 Message to Our Nation’s Health Care Providers: In light of recent tragic and horrific events in our nation, including the mass shootings in Newtown, CT, and Aurora, CO, I wanted to take this opportunity to ensure that you are aware that the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule does not prevent your ability to disclose necessary information about a patient to law enforcement, family members of the patient, or other persons, when you believe the patient presents a serious danger to himself or other people. The HIPAA Privacy Rule protects the privacy of patients’ health information but is balanced to ensure that appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes, such as when a provider seeks to warn or report that persons may be at risk of harm because of a patient. When a health care provider believes in good faith that such a warning is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others, the Privacy Rule allows the provider, consistent with applicable law and standards of ethical conduct, to alert those persons whom the provider believes are reasonably able to prevent or lessen the threat. Further, the provider is presumed to have had a good faith belief when his or her belief is based upon the provider’s actual knowledge (i.e., based on the provider’s own interaction with the patient) or in reliance on a credible representation by a person with apparent knowledge or authority (i.e., based on a credible report from a family member of the patient or other person). These provisions may be found in the Privacy Rule at 45 CFR § 164.512(j). Under these provisions, a health care provider may disclose patient information, including information from mental health records, if necessary, to law enforcement, family members of the patient, or any other persons who may reasonably be able to prevent or lessen the risk of harm. For example, if a mental health professional has a patient who has made a credible threat to inflict serious and imminent bodily harm on one or more persons, HIPAA permits the mental health professional to alert the police, a parent or other family member, school administrators or campus police, and others who may be able to intervene to avert harm from the threat. In addition to professional ethical standards, most states have laws and/or court decisions which address, and in many instances require, disclosure of patient information to prevent or lessen the risk of harm. Providers should consult the laws applicable to their profession in the states where they practice, as well as 42 CFR Part 2 under federal law (governing the disclosure of substance abuse treatment records) to understand their duties and authority in situations where they have information indicating a threat to public safety. We at the Office for Civil Rights understand that health care providers may at times have information about a patient that indicates a serious and imminent threat to health or safety. At those times, providers play an important role in protecting the safety of their patients and the broader community. I hope this letter is helpful in making clear that the HIPAA Privacy Rule does not prevent providers from sharing this information to fulfill their legal and ethical duties to warn or as otherwise necessary to prevent or lessen the risk of harm, consistent with applicable law and ethical standards.

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