MCCA is a
State chapter of the
American
Mental Health Counselors Association
MCCA is a
State chapter of the
American
Mental Health Counselors Association
By H. Michael Alpren, LCPC, LMFT, ESQ.
Client: “I don’t know if I should talk about this with you…you know, the affair…; I’m afraid that my words might be used against me in the custody portion of the divorce?”
Therapist: “Except for those things which I’m mandated by law to report - and you and I have already talked about those -everything you say to me in here is confidential.”
If you think that this therapist was right in what he or she said to the client, you are wrong; that is, you are wrong (a) if that therapist is a licensed counseling professional or clinical social worker and (b) if that therapist-client interaction took place before August 1, 2008. What’s so pivotal and relevant about the date of August 1, 2008? That is the date that the 2007 Amendment to Rule of Evidence 503 (passed by the Supreme Judicial Court of Maine on July 7, 2008) becomes law of the State of Maine.
This recent evidentiary fact in my present life once again forces me to affirm and declare that there is a “living” God and that S/He (not Caesar) is entitled to Her due. What or who, you may ask, has placed such a religious nickel into my spiritual jukebox. The Supreme Judicial Court of Maine and one heavyweight of a “mentsh” by the name of Peter L. Murray “made me do it”. In a spin-off of the words of the Reverend Martin Luther King, Jr., those two herculean forces did in-fact “overcome”, and I have no doubt that God’s “Lil Angels of the Judiciary” were guiding and choreographing the entire judicial “dog & pony show.” So much for my flowery tease; and now, the rest of the story.
What is the new Rule 503 all about? Why was the confidentiality law which the legislature gave us in 1990 a far-cry from good enough? And how are we mental health professionals and the clients who come to us for help positively affected by the new version of Rule 503? I will now attempt to set-forth the essence of this new rule. You may read Rule 503 unedited, unabridged and in its entirety at http://www.courts.state.me.us/ .
Privileged communication is communication that is protected from disclosure in a court of law. Most licensed counseling professionals and clinical social workers are unaware that they did not enjoy fully privileged communication with their clients. By enacting this Amendment, the Supreme Judicial Court of Maine has expanded the coverage of privileged communication to include licensed counseling professionals and clinical social workers. The earlier version limited the extraordinary protection to physicians, psychologists and psychological examiners.
In 1990, the Maine Legislature passed 32 MRSA 13858 et seq. It was only a conditional privilege statute because it allowed the court to use its discretion to relinquish privilege when administering justice. A conditional privilege means that a therapist-client could well be ordered to disclose (by a Judge/Justice) when a court in the exercise of sound discretion determines the disclosure necessary for the proper administration of justice. This gave the patient/client a watered-down privilege and no real protection at all. Rule 503 now gives us what is referred to as an absolute privilege law; “Absolute” is a legal term that means that the general rule of law, it’s exceptions and limitations, are ALL set forth within the “the four corners of the instrument”; i.e., Rule of Evidence 503.
What is the General Rule of Privilege? A patient has a privilege not to disclose information and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of their physical, mental or emotional condition, including alcohol or drug addiction. It is critical to remember that it is the client/patient who has the privilege—NOT the therapist. However the health care professional, mental health professional or licensed counseling professional may claim the privilege on behalf of the client/patient.
Rule (of evidence) 503 addresses three distinct categories of “physician-psychotherapist” communication. The first such category is known as “Health Care Professionals”. Health Care Professionals are persons who are authorized to practice as a physician (M.D./D.O.), a person licensed as a physician’s assistant (P.A.) or a person licensed as a nurse practitioner (N.P.); the second category refers to “mental health professionals”. Mental Health Professionals are Health Care Professionals while engaged in the diagnosis and treatment of a mental health or emotional disorder, a person licensed as a psychologist or psychological examiner or a person who has been licensed as a clinical social worker (LCSW) under 32 MRSA section 7051 et seq.; the third category refers to “licensed counseling professionals”. Licensed counseling professionals are licensed professional counselors (LPC), licensed clinical professional counselors (LCPC), licensed marriage and family therapists (LMFT) and licensed pastoral counselors, so licensed under 32 MRSA Section 13858 et seq.. All professionals in this third category must be fully and completely licensed in order to fall under the extraordinary protection of this Rule.
The general rule of law, notwithstanding our duties as mandated reporters (see Title 22, Chapter 1071, Subchapter 2, Section 4015), has three (3) exceptions: 1) Privilege is suspended relevant to an involuntary commitment proceeding; once that proceeding has terminated however, the full-force of the extraordinary protection of Rule 503 is returned. 2) There is no privilege where communications are made in a court-ordered examination; only for the particular purpose for which the examination is ordered. 3) Finally, there is no privilege relevant to a condition that is an element of a claim or defense of the patient/client in a civil or criminal court proceeding. Such an exception is based on principles of waiver.
And there you have it, an overview of the new absolute privilege law; i.e., Rule (of evidence) 503. What are your thoughts and feelings about that new Amendment? I’d be most pleased to get your feedback/input at my e-mail address, the link of which is located below. For further information and commentary, you are directed to the specific State web site which you will find set-forth above. Shalom, H Michael Alpren.
H. Michael Alpren has been working for nearly two decades to expand privilege communication laws to all fully licensed mental health professionals. He is available to provide in-service training or be a guest speaker. You may e-mail him to set-up such an occasion at malpren1@maine.rr.com or call him at his home (207-797-0110) or mobile phone (207-576-8580).
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To: Mental Health Agency Providers
From: Anthony Marple, Director, Office of MaineCare Services
Subject: Update on LCPC Services for Dual Eligible Members
Please disregard my memo dated June 29, 2007. The following describes the status of people eligible for Medicare who seek coverage of LCPC services.
Some people are referred to as "dual eligibles" because they are eligible for Medicare and have a connection with MaineCare. Within this group of dual eligible members are two groups: (1) those members who are entitled to full Medicare and MaineCare coverage; and (2) those members for whom MaineCare pays only Medicare co-insurance, premiums and deductions — the "QMS members." QMB members do not qualify for any other MaineCare payments or benefits.
Because Medicare does not recognize LCPC as a reimbursable provider type, MaineCare cannot pay for LCPC services for QMB members. QMB members must receive counseling services from a Medicare recognized provider in order to have Medicare pay for those services. However, those dual eligibles who are entitled to full MaineCare coverage will be permitted to receive counseling services from LCPCs in accordance with MaineCare rules, as well as all benefits available under the MaineCare program to fully eligible recipients. One way to identify QMB members is that they are issued a pink paper card from the MaineCare program.
Coming Soon.