California Society for Clinical Social Work

FREQUENTLY ASKED QUESTIONS

Question: What is the requirement for maintaining client records?

Answer: California Code of Civil Procedure section 337 pertains to a statute of limitations on written contracts - which is four years. California Code of Civil Procedure section 340.5 provides a statute of limitations (three years) for actions brought for injuries or death of a patient against a health care provider with exceptions for tolling under certain instances.

Although neither of these statutes offer guidance with respect to the keeping of patient records, it is commonly taught in law and ethics seminars throughout California that 7 years is the cut-off point.  In truth, no specific California code sections prescribe this number. However, it is considered a best practice to maintain the records for this period, as the BBS has 7 years to act against a therapist for most violations (and 10 years for sexual misconduct).

With regard to minors, statutes of limitations do not begin or run until the time of their 18th birthday. (California Business Code and Professions Code sections 4982.05 and 4990.32.) This means that records of minors should not be destroyed until, at least, 7 years past the date of their 18th birthday. (Although some therapists choose to retain minors' records until 10 years following their 18th birthday.)

Question: Are mandated reporters required to make suspected child abuse reports outside of the hours they are working?

Answer: No. Mandated reporting is required only during the time in which the practitioner is working. Put another way: liability for failing to report applies only to situations when a clinician receives relevant information while engaged at his or her professional position.  In pertinent part, Penal Code § 11166 reads:  

            “a mandated reporter shall make a [suspected child abuse] report … whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.”

However, discretionary calls are allowed to be made by mandated reports, when outside of “his or her professional capacity or within the scope of his or her employment,” with the same protections for the reporter intact.

Question: Are emails and text messages between clinicians and clients confidential?

Answer: Not necessarily. Any time communication occurs over an electronic medium (e.g., email, text services, etc.), unless the service is owned by the parties using it, there is a third-party provider involved. Recently, this topic has been in the news, as it has been further revealed how much data is collected by these providers. For this reason, if clients request to communicate with clinicians, using electronic mediums, the clinician should be prepared to inform the client that such communications are not confidential.

With the prevalence of texting and emails, it is not surprising that many clients prefer to keep in contact with clinicians through one or more of these mediums. Because the privilege of confidentiality ultimately resides with clients, they should be informed of the risks, even if they ultimately consent to using electronic mediums.

For these reasons, it is advisable that each clinician create his or her own policy regarding how to interact with clients, using electronic mediums and announce it at the beginning of the therapeutic relationship. Some clinicians, who communicate with clients using electronic mediums, advise their clients to include only information they would feel comfortable writing on a post card. Other clinicians only use these mediums for confirmation of appointment dates and times.

Question: How can I ethically advertise my services?

Answer: To begin, advertisements must include only information that is true, as false speech for the purpose of advertising is not only unethical, it is unprotected by the First Amendment. Also, it is unethical to make outcome guarantees.  Questions about whether to include testimonials come up regularly. My advice is to avoid them, and here is why: because therapy is premised on relationships (and not all relationships are the same) outcomes can vary widely among clients, regardless of the type of therapy employed. While often effective for the purpose of advertising products, testimonials may have unintended consequences with respect to client expectations about the therapy.

Question: May an LCSW, who is going through the process of renewal, continue to practice under the license of a colleague?

Answer: On the surface, this may seem reasonable, as Associate Social Workers (ASW) are able to practice under another’s license. Furthermore, because there is a basis for liability, which will not be absorbed by the public, this is scenario appears valid. Nonetheless, an ASW, like a learner’s permit (in the context of driving) functions as a provisional license, so a practitioner with an ASW is already required to be under the supervision of a LCSW. This context is different from being unlicensed altogether. For a licensed therapist, awaiting renewal, his or her status during this period is “unlicensed” and there is no automatic provisional status to take its place; recall that the ASW license is cancelled at the time of  LCSW licensure. Therefore, therapists awaiting renewal may not practice under the license of a colleague.

Question: Is a therapist required to report misdemeanors at the time of licensure renewal?

Answer: The short answer is yes. Even though a misdemeanor is a lesser offense than a felony, the Board of Behavioral Sciences requires that they be reported at time of renewal.

Question: How much information must a therapist provide about a client to an insurance company?

Answer: This is a double-edged sword. On the one hand, when a client enters a contract to become the beneficiary of an insurance policy, communication is necessary between the therapist and the insurance company to account for services rendered. Moreover, waivers for such communications are usually part of the contractual process and the therapist’s intake procedure. Nonetheless, it is good practice to safeguard at all possible times the client’s confidential information. Thus, unless a therapist is required to provide notes, presenting as little as information as possible is a safer path.

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