Section Psyc 204.04 - Handling of Psychological Records(a) Pursuant to RSA 329-B:22, VI, if it determines that just cause exists to do so, the board shall subpoena psychological records from its licensees, hospitals, or other health care providers licensed in New Hampshire.(b) In the event that the client or patient owning the privilege of psychology records sought by the board is the person who has made the allegations against the licensee, the board shall have access to such records.(c) In the event that the client or patient named in the complaint is a child, the legitimate assertion of the privilege by one natural parent or adoptive parent or legal guardian is sufficient for this paragraph to apply. The board may act on that parent or guardian's initiation of a complaint regardless of the objection of the other parent or guardian.(d) In the event that the person alleging misconduct against the licensee is not the owner of the privilege for the records of the client or patient named in the complaint, the records for an investigation shall be treated as follows: (1) When the board reviews the initial allegations and upon all further reviews of the case by the board, the identity of the named client/patient shall be redacted from the documents reviewed by the board;(2) Upon issuance by the board of an order of investigation, but prior to the assignment of the case to a member of the professional investigation team, the name of the client or patient shall be provided to the immediate investigative team in order to determine the need for recusal of those members before accepting assignment as described in paragraph (h);(3) The record of the client or patient under this paragraph that has been specifically named in the complaint shall be obtained by the professional investigative team as follows: a. The board may order its administrator or investigator to request permission from the client or patient to obtain the record for the investigation, informing the client or patient about the bounds of confidentiality of such records and the nature of the investigation process. If the client or patient grants permission, the board may obtain the copies of the record from the licensee;b. If the client/patient denies permission for access to the record, or if the board chooses to omit the request for permission, the procedures of subparagraphs (e)(4), (5), (6), and (8) shall apply to the handling of those records and requests for interviews;(4) Personally identifiable information pertaining to the client or patient under this subparagraph shall remain known only to the immediate investigation team assigned to the case, including, but not limited to, the board investigator, any administrative prosecution unit attorney assigned to the case, a professional conduct investigator, the board administrator;(5) All communication beyond the immediate investigation team pertaining the client or patient named in the complaint shall be conducted without the use of personally identifying information;(6) The name of the client or patient under this subparagraph shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent.(e) Records of client/patients who are not named in the initial allegations shall be treated as follows: (1) If the investigation team wishes to obtain records of, or contact, clients/patients not named in the original order of investigation, the investigation team shall make its request to the board with reasons for the request, shall specify the scope of cases and types of records requested, and shall state the name of the individual authorized to contact any client/patient;(2) Upon issuance of an order of investigation by the board pertaining to treatment of patients defined in this subparagraph, the names of the clients/patients that fulfill the criteria of selection may be made available to the immediate investigation team for purposes of determining whether recusal issues pertain to their selection for the investigation as described in subparagraph (g);(3) If the board orders investigation into client/patient cases who are not named in the original allegations, it shall specify whether these clients/patients may be contacted directly by the investigation team;(4) For records requested under this subparagraph, a licensee shall be instructed to provide records that are redacted of personally identifiable information. Each record shall be marked with an identifying code and the licensee shall provide to the board administrator the contact information for corresponding clients/patients as specified in paragraph (g);(5) The board administrator shall separately store in a secure manner the list of these client/patient codes with corresponding contact information;(6) In the event the investigation team has just cause to verify its redacted copies against originals of the records of specified cases, it shall request permission of the board giving reason for its request. If the board grants permission, the investigation team may have access to the identified records. Originals of the records may be viewed at a time and location determined by the investigation team. The investigation team may request a copy of the identified original records be sent to the immediate investigation team. The investigation team may then proceed to review the original or copies of the identified records in comparison with the redacted copies to ascertain their completeness and accuracy. Copies and corrections to the redacted records may be made by the investigation team, after which any identified copies in the possession of the investigation team shall be destroyed and original records returned to the licensee;(7) When permission has been granted by the board pursuant to subparagraph (e)(1) to contact clients/patients pertaining to this subparagraph, access to the contact information is limited to the professional conduct investigators and administrative prosecution unit attorneys assigned to the case, the administrative clerk who manages the confidential files of the case, and any assistants specifically approved by the board for contact;(8) The member of the immediate investigation team making contact with clients/patients pursuant to subparagraph (e)(1), shall request permission from the clients/patients to conduct an interview and shall include an explanation that they may grant or refuse permission for such interview and that there are no adverse personal consequences of any kind for refusal to grant permission or for withdrawing permission at any time in the process. The investigation team member may inform the clients/patients that refusal to participate may prevent the investigation to proceed or reach a conclusion. The investigation team member shall predicate continuation of the interview on the client/patient's agreement to a confidentiality agreement concerning the licensee and the existence of the investigation;(9) At the conclusion of the investigation and prior to review of the report of investigation, the identity of the client/patient under this paragraph shall be disclosed to members of the board to determine the need for recusal of its members as described in subparagraph (g);(10) The identity of each client/patient shall be redacted by the administrator or investigation team from any documents reviewed by the board;(11) The identity of a client/patient defined in this subparagraph shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent;(f) The mental health records obtained through subparagraphs (a), (b), and (c) shall, if archived, be treated as follows: (1) At or before the conclusion of the licensee investigation case, including all disciplinary action and completion, remediation and sanctions ordered and completed, and completion of all appeals, and appeal periods, the client/patient records shall be reduced to those clients/patients and sections of records that had been included in the prosecution, defense, deliberation, and determination of the case. Client/patient materials not pertinent to the above shall be destroyed;(2) Materials retained in subparagraph (d)(1) pertaining to clients/patients other than the complainant shall be redacted of all personally identifiable information; and(3) The identification and contact information collected during the investigation for clients/patients other than the complainant shall be destroyed prior to archiving.(g) The archived mental health records shall be destroyed according to the attorney general's archive destruction schedule.(h) In the process of determining recusal, the security of the client/patient's identity shall be preserved, as follows: (1) Before engaging in any cases as defined in subparagraph (d), board members, investigators, and others as specified in this paragraph with access to case files shall first review the name of the client/patient before proceeding with the case. If a conflict of interest is revealed, that person shall recuse himself or herself from the case.(2) Before engaging in any cases defined in subparagraph (e), the immediate investigation team members at the onset of investigation, board members at the time of reviewing the findings of the formal investigation, and any others authorized in this paragraph to have access to the case prior to commencing review of such cases shall first determine if there is a need for recusal. The name and town of the client/patient shall be embedded in a list of at least 12 other names and towns prepared by the board administrator. The list shall be reviewed by the team member in the presence of the board administrator. Telephonic review is permitted. The member shall not retain a written record of the list. The member shall indicate which if any names would present reasons for recusal for that member. If the names indicated by the member do not include the client/patient as known to the administrator, then the member shall be permitted to participate in the case.(3) If a client/patient as defined in subparagraphs (d) or (e) testifies or intends to attend the hearing of the case involving his or her treatment, in which the board may see the client/patient inadvertently or directly, the client/patient's name shall be revealed to the board members so that they may have the opportunity to recuse themselves prior to the proceeding, and the client/patient shall be informed beforehand of such disclosure.(4) For recusal issues pertaining to clients/patients selected under paragraph (e) of this section, the investigation team shall review the names of the clients/patients who qualify for the scope of investigation as defined in the order by the board, after which team members shall determine if recusal issues occur. The names and towns of the selected clients/patients shall be embedded in a list containing at least 25 percent other names and towns prepared by the board administrator. The list shall be reviewed by the team member in the presence of the board administrator. Telephonic review is permitted. The member shall not retain a written record of the list. Each member shall indicate which if any names would present reasons for recusal for that member. If the names indicated by the member do not include the clients/patients as known to the administrator, then the member shall be permitted to participate in the case. If a case presents a recusal issue, then the investigation team shall either disqualify clients/patients from the list or shall disqualify the team member from handling those cases, as the expeditious handing of the investigation and the interests of justice require.(5) When board members review the reports of investigations that include case information pertaining to clients/patients as defined in subparagraph (e), they shall review their names prior to reading such reports in the following manner: a. If there are 10 or fewer cases with individual clinical information presented, then the methods of testing for recusal shall follow the recusal procedures of subparagraph (g)(2).b. When the report includes clinical information pertaining to more than ten cases, then the recusal methods of subparagraph (g)(4) shall apply.c. When such clients'/patients' information is presented only in aggregate form, no recusal is required.(i) Testimony by clients/patients shall be handled with utmost regard for their privacy and protection of their identity from public disclosure. (1) A client/patient as defined under subparagraphs (d) or (e) shall not be compelled to testify at a board hearing.(2) If a client/patient as defined in subparagraphs (d) or (e) testifies at a hearing, his or her identity shall be screened from the public view and knowledge, although the respondent and attorneys shall be within the view of the client/patient. The board may view the client/patient. The public's access to the view or information that would identify the client/patient shall be restricted. At the board's discretion, the hearing may be closed to the public for the duration of the client/patient's testimony.(3) If a client/patient who is party to the complaint requests such privacy safeguards as in subparagraph (i)(2), the accommodations of that subparagraph may likewise be made at the discretion of the board.(j) Licensees shall comply with board requests for client/patient records and all redaction requirements specified under this section. Failure to comply with lawful requests of the board under this section may subject the licensee to discipline as the board may determine.(k) For purposes of this section, "personally identifiable information" means information which identifies an individual or which a reasonable person would believe can be used to identify an individual, which includes common and uncommon identifiers, including but not limited to name, address, birth date, social security number, court docket number, insurance policy number, and any other identifiers of an individual and of the individual's known relatives, household members, and employers that a reasonable person would believe could identify the individual to whom the record pertains.(l) For purposes of this section, "record" means health information collected from or about an individual that: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and(2) Relates to the individual, the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.N.H. Admin. Code § Psyc 204.04
Derived From Volume XXXVI Number 49, Filed December 8, 2016, Proposed by 12035-A, Effective 11/4/2016.