La. Admin. Code tit. 46 § LX-2105

Current through Register Vol. 50, No. 11, November 20, 2024

Section LX-2105 - Confidentiality, Privileged Communication, and Privacy

A. Licensees recognize that trust is a cornerstone of the counseling relationship. Licensees aspire to earn the trust of clients by creating an ongoing partnership, establishing and upholding appropriate boundaries, and maintaining confidentiality. Licensees communicate the parameters of confidentiality in a culturally competent manner.

1. Respecting Client Rights

a. Multicultural/Diversity Considerations. Licensees maintain awareness and sensitivity regarding cultural meanings of confidentiality and privacy. Licensees respect differing views toward disclosure of information. Licensees hold ongoing discussions with clients as to how, when, and with whom information is to be shared.

b. Respect for Privacy. Licensees shall respect their clients' right to privacy and avoid legal and unwarranted disclosures of confidential information.

c. Respect for Confidentiality. Licensees do not share confidential information without client consent. The right to privacy may be waived by the client or their legally recognized representative.

d. Explanation of Limitations. At initiation and throughout the counseling process, licensees inform clients of the limitations of confidentiality and seek to identify foreseeable situations in which confidentiality must be breached.

2. Exceptions

a. Danger and Legal Requirements. The general requirement that licensees shall keep information confidential does not apply when disclosure is required because a patient has communicated a threat of physical violence, which is deemed to be significant in the clinical judgment of the licensee, against a clearly identified victim or victims, coupled with the apparent intent and ability to carry out such threat, or when legal requirements otherwise demand that confidential information be revealed. Licensee shall consult with other professionals when in doubt as to the validity of an exception.

b. Contagious, Life-Threatening Diseases. When clients disclose that they have a disease commonly known to be both communicable and life threatening, licensees may be justified in disclosing information to identifiable third parties, if they are known to be at demonstrable and high risk of contracting the disease. Prior to making a disclosure, licensees confirm that there is such a diagnosis and assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party.

c. Court-Ordered Disclosure. When subpoenaed to release confidential or privileged information without a clients permission, licensees obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible due to potential harm to the client or counseling relationship.

d. Minimal Disclosure. To the extent possible, clients are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circumstances require the disclosure of confidential information, only essential information is revealed.

3. Information Shared with Others

a. Subordinates. Licensees make every effort to ensure that privacy and confidentiality of clients are maintained by subordinates, including employees, supervisees, students, clerical assistants, and volunteers.

b. Treatment Teams. When client treatment involves a continued review or participation by a treatment team, the client will be informed of the team's existence and composition, information being shared, and the purposes of sharing such information.

c. Confidential Settings. Licensees discuss confidential information only in settings in which they can reasonably ensure client privacy.

d. Third-Party Payers. Licensees disclose information to third-party payers only when clients have authorized such disclosure.

e. Transmitting Confidential Information. Licensees take precautions to ensure the confidentiality of information transmitted through the use of:

i. computers;

ii. electronic mail;

iii. facsimile machines;

iv. telephones;

v. voicemail;

vi. answering machines; and

vii. other electronic or computer technology.

f. Deceased Clients. Licensees protect the confidentiality of deceased clients, consistent with legal requirements and agency or setting policies.

4. Groups and Families

a. Group Work. In group work, counselors clearly explain the importance and parameters of confidentiality for the specific group being entered.

b. Couples and Family Counseling. In couples and family counseling, licensees clearly define who is considered "the client" and discuss expectations and limitations of confidentiality. Licensees seek agreement and document in writing such agreement among all involved parties having capacity to give consent concerning each individuals right to confidentiality and any obligation to preserve the confidentiality of information known.

5. Clients Lacking Capacity to Give Informed Consent

a. Responsibility to Clients. When counseling minor clients or adult clients who lack the capacity to give voluntary, informed consent, licensees protect the confidentiality of information received in the counseling relationship as specified by federal and state laws, written policies, and applicable ethical standards.

b. Responsibility to Parents and Legal Guardians. Licensees inform parents and legal guardians about the role of licensees and the confidential nature of the counseling relationship. Licensees are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians over the welfare of their children/charges according to law. Licensees work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients.

c. Release of Confidential Information. When counseling minor clients or adult clients who lack the capacity to give voluntary consent to release confidential information, licensees seek permission from an appropriate third party to disclose information. In such instances, licensees inform clients consistent with their level of understanding and take culturally appropriate measures to safeguard client confidentiality.

6. Records

a. Confidentiality of Records. Licensees ensure that records are kept in a secure location and that only authorized persons have access to records.

b. Permission to Record. Licensees obtain permission from clients prior to recording sessions through electronic or other means.

c. Permission to Observe. Licensees obtain permission from clients prior to observing counseling sessions, reviewing session transcripts, or viewing recordings of sessions with supervisors, faculty, peers, or others within the training environment.

d. Client Access. Licensees provide reasonable access to records and copies of records when requested by competent clients. Licensees limit the access of clients to their records, or portions of their records, only when there is compelling evidence that such access would cause harm to the client. Licensees document the request of clients and the rationale for withholding some or all of the record in the files of clients. In situations involving multiple clients, licensees provide individual clients with only those parts of records that related directly to them and do not include confidential information related to any other client.

e. Assistance with Records. When clients request access to their records, licensees provide assistance and consultation in interpreting counseling records.

f. Disclosure or Transfer. Unless exceptions to confidentiality exist, licensees obtain written permission from clients to disclose or transfer records to legitimate third parties. Steps are taken to ensure that receivers of counseling records are sensitive to their confidential nature.

g. Storage and Disposal after Termination. Licensees store records following termination of services to ensure reasonable future access, maintain records in accordance with state and federal statutes governing records, and dispose of client records and other sensitive materials in a manner that protects client confidentiality. When records are of an artistic nature, licensees obtain client (or guardian) consent with regards to handling of such records or documents.

h. Reasonable Precautions. Licensees take reasonable precautions to protect client confidentiality in the event of the licensees termination of practice, incapacity, or death.

7. Research and Training

a. Institutional Approval. When institutional approval is required, licensees provide accurate information about their research proposals and obtain approval prior to conducting their research. They conduct research in accordance with the approved research protocol.

b. Adherence to Guidelines. Licensees are responsible for understanding and adhering to state, federal, agency, or institutional policies or applicable guidelines regarding confidentiality in their research practices.

c. Confidentiality of Information Obtained in Research. Violations of participant privacy and confidentiality are risks of participation in research involving human participants. Investigators maintain all research records in a secure manner. They explain to participants the risks of violations of privacy and confidentiality and disclose to participants any limits of confidentiality that reasonably can be expected. Regardless of the degree to which confidentiality will be maintained, investigators must disclose to participants any limits of confidentiality that reasonably can be expected.

d. Disclosure of Research Information. Licensees do not disclose confidential information that reasonably could lead to the identification of a research participant unless they have obtained the prior consent of the person. Use of data derived from counseling relationships for purposes of training, research, or publication is confined to content that is disguised to ensure the anonymity of the individuals involved.

e. Agreement for Identification. Identification of clients, or students, or supervisees in a presentation or publication is permissible only when they have reviewed the material and agreed to its presentation or publication.

8. Consultation

a. Agreements. When acting as consultants, licensees seek agreements among all parties involved concerning each individuals rights to confidentiality, the obligation of each individual to preserve confidential information, and the limits of confidentiality of information shared by others.

b. Respect for Privacy. Information obtained in a consulting relationship is discussed for professional purposes only with persons directly involved with the case. Written and oral reports present only data germane to the purposes of the consultation, and every effort is made to protect client identity and to avoid undue invasion of privacy.

c. Disclosure of Confidential Information. When consulting with colleagues, licensees do not disclose confidential information that reasonably could lead to the identification of a client or other person or organization with whom they have a confidential relationship unless they have obtained the prior consent of the person or organization or the disclosure cannot be avoided. They disclose information only to the extent necessary to achieve the purposes of the consultation.

La. Admin. Code tit. 46, § LX-2105

Promulgated by the Department of Health and Hospitals, Licensed Professional Counselors Board of Examiners, LR 15:623 (August 1989), amended LR 24:440 (March 1998), LR 29:144 (February 2003), LR 39:1796 (July 2013), LR 41728 (4/1/2015).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:1101-1123.