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This article was updated and dramatically expanded on August 18th, 2016

Paper Flying From a Computer“What is a record?” I ask this question with students every year in Ethics class, and the answer looks very different from when I was in graduate school. Modern practice has broken out of the confines of consulting rooms, filing cabinets, and the occasional landline call. As such, we need to remember that a “record” is much more than just the documents that sit in our filing cabinets or EHR systems.

A record is any recorded information regarding a client’s care. That includes documentation of sessions, information exchanged with other providers, and yes — it includes emails and texts exchanged with clients.

All communications with a client are legally part of their health record, and thus we need to be mindful of how we regard the messages that sit in our Inboxes and texting record.

Textual Communications Are a Little Different From More Ephemeral Communications

We don’t generally have to transcribe the entire contents of a therapy session or other therapeutic interaction every time we document. That would be unreasonable for at least these two reasons:

  1. They are generally conversations, which are ephemeral. We don’t usually expect human beings to remember and/or record entire conversations.
  2. They’re usually a bit long. Who wants a folder full of full-text transcriptions of 50-minute long sessions?

Textual communications are a little different. They are, by their nature, already recorded. If a court subpoenas your records, the judge may find it reasonable to expect the full original text of communications, given that they arrived in your possession in a recorded format already.

Depending on what equipment you have, or what services you’re using, getting the full text of a communication into your record will be more or less difficult.

Documenting Emails

Magic Effervescent EmailsThis is usually quite easy. Most people can read their email on a computer, meaning emails can be printed and placed in a paper record, or copied and pasted into an electronic record.

As noted in our article on Email and HIPAA Compliant Practice, emails sit on the servers of the companies that provide your email service. Following a thorough risk analysis, some clinicians may decide that leaving emails on the server is sufficient to maintain them, as opposed to copying the emails into a record-keeping system.

This analysis should, at the very least, include an analysis of how reliably your service maintains backups of its data and how easy it is for you to find emails that are part of a given client’s record.

To facilitate this analysis:
Imagine having to produce a report that includes every email you exchanged with a given client. Are you sure you could use your email service to produce such a report without missing anything that should be, or including anything that shouldn’t be, in the report? How would you make sure to get everything if a client’s email address changed during therapy, or if they used multiple addresses?

Because of the vulnerabilities listed above, many technical experts advise that emails should be copied directly into whatever system you use to maintain client records. That helps to make sure you have them all in one place. We assert, however, that this is not an absolute necessity if you are able to earnestly and competently assess whether or not it works to keep emails on your service provider’s servers.

Note well that any email service you subscribe to must, at the very least, provide you with a Business Associate Agreement. And you need to keep up good practices to maintain the security of your email accounts.

Documenting Text Messages

BFFs with smartphoneThis may (or may not) be more difficult depending on what kind of phone you have. A classic cellular phone can’t connect to a printer, for example. Nor can it connect to an online electronic record system.

Smartphones usually can print to a wireless printer, assuming you have one available. The connection between phone and computer is usually often by WiFi. So if your printer and your smartphone are connected via trustworthy WiFi, you can print through the wireless printer and you’re golden. (The topic of trustworthy WiFi is beyond the scope of this article. Sorry.)

If your electronic record system is online, you can likely connect to that system on your smartphone. From there, it should be a simple matter to copy and paste text messages from the texting app to the record system.

A number of clinicians have asked us about something that we see as a Bad Idea™: emailing text messages to yourself so that you can print the email. Remember the important point that sending information in an ordinary email (or SMS text) means sending it over the open Internet without any measures in place to protect it from prying eyes. So if you use this method, then you put that text message through confidentiality double jeopardy (because it already weathered the Internet prying eye gauntlet when it was sent to you in the first place.) What’s more, the client has no awareness that you’re doing this, and never expected their message to be re-transmitted over the open Internet.

There are services out there — and they are always “cloud” services — that will help you extract text messages from your smartphone. Usually the point of the service is to make sure the information is backed up, but they can also be used to make it easier to print text messages or move them to another place (such as your electronic record system.) Remember that when you use a cloud service, the first and most basic thing you look for is that Business Associate Agreement. No matter how simple or inconsequential the service seems to be, using it still means entrusting confidential information to a third party. HIPAA always requires a BAA in that case.

Another option is to transcribe text messages into the record by hand (or by typing.) If you do so, I suggest you make sure to retain:

  • The full original text, including errors.
  • The time and date it was received.
  • The phone number from which it was received.

If it helps, your humble author uses a classic cellular phone with clients and so must employ the transcribe-by-hand method when documenting any SMS texts they decide to send him.

Lastly, and just like with emails, there is the option of leaving texts on your phone. See the section above on emails for some potential pitfalls of doing that. Add to the concerns raised there that the burden of securing your phone from intrusion, theft/loss, or from losing data, is entirely on your own shoulders.

Do We Document Every Message and Do We Copy It Verbatim?

Computer backup tapes for data recoveryDo you really have to document that text message that says nothing more than, “5 min late”? Many clinicians have expressed to us that they see these messages as being of too low importance to retain. Let’s explore what some experts have said on the subject, and then see what ethics codes have to say about it.

Notable Experts on Verbatim Documentation of All Emails and Texts

Ofer Zur, PhD argues that documenting every message is unnecessarily burdensome, and only the communications with clinical relevance should be documented. (Zur, 2010) One could look at this as only documenting those communications whose contents are likely to come up as important later. He also argues that message contents can be summarized, like we would a therapy session or a voicemail.

Keely Kolmes, PsyD argues that we can’t know if a message is part of a larger, important pattern until the pattern emerges. Thus it is wise to retain all communications so we can make sure we still have them should a clinical pattern emerge. (Kolmes, 2010) We maybe don’t know why our example client is running 5 minutes late, and later it could turn out to be important that they sent a message about it.

Codes of Ethics on Verbatim Documentation of All Emails and Texts

Let’s look at a selection from the major associations (in alphabetical order) to determine if there is an ethical standard dictating the need to document, verbatim, every email or text:

American Association of Marriage and Family Therapists:

The AAMFT code does not directly address the issue of documenting emails and texts. Standard VI, which focuses on technology, discusses the need to secure documentation. It does not talk about its contents, however. The code addresses documentation in a broader sense in Standard III:

3.5 Maintenance of Records.
Marriage and family therapists maintain accurate and adequate clinical and financial records in accordance with applicable law.

American Association of Marriage and Family Therapists, 2015

American Mental Health Counselors Association:

The AMHCA code reminds us that emails and texts are part of the client’s record and states that they should be kept.

Telehealth, Distance Counseling and the Use of Social Media

Email: …Email transmissions are part of the client record; copies should be maintained in the client file.
Text messages: …Text messages are considered a part of the client record, and should be kept in the client file.
American Mental Health Counselors Association, 2015, I.B.6.c

The standard to keep messages “in the client file” is an interesting extra point. This implies that the code expects mental health counselors will copy or print messages into the main record-keeping system.

American Counseling Association:

The ACA code does not directly address the issue of documenting emails and texts. Section H, which focuses on technology, discusses the need to secure records, but not their contents. See, however, the language on documentation in Section A:

A.1.b Records and Documentation
Counselors create, safeguard, and maintain documentation necessary for rendering professional services. Regardless of the medium, counselors include sufficient and timely documentation to facilitate the delivery and continuity of services. Counselors take reasonable steps to ensure that documentation accurately reflects client progress and services provided.

American Counseling Association, 2014 (Emphasis mine)

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American Psychological Association:

The APA code does not directly address the issue of documenting emails and texts other than stating the broad standard that psychologists keep records of work as necessary for ethical professional practice. However, the APA guidelines on telepsychology do make mention of documenting electronic communications in the Application text on Guideline 5:

When keeping records of email, online messaging and other work using telecommunication technologies, psychologists are cognizant that preserving the actual communication may be preferable to summarization in some cases depending on the type of technology used.
American Psychological Association Guidelines for the Practice of Telepsychology, Security and Transmission of Data and Information, Application, 2013

It’s not clear precisely what they mean by “depending on the type of technology used.” However, I am inclined to believe that they are referring to the fact that emails, texts, and other online messaging services deliver messages in textual form. As such, it’s reasonable to expect that a psychologist would be in a position to document them verbatim.

National Association of Social Workers:

Like the APA code, the NASW code does not directly address the issue of documenting emails and texts other than providing a broad standard for professional documentation of services. NASW and ASWB also released a new guideline in 2017 on technology in social work. That document does not provide specific guidance, but does reference electronic communications:

Standard 3.03 (Interpretation): Handling Confidential Information
Social workers who gather, manage, and store information electronically should take reasonable steps to ensure the privacy and confidentiality of information pertaining to clients or research participants. Federal and state statutes and regulations may dictate how electronic records are to be stored and social workers are responsible for being aware of and adhering to them. Organizations in various practice settings may have additional policies regarding the storage of electronic communications.

Standards for Technology in Social Work Practice, 2017 (Emphasis mine)

National Board for Certified Counselors:

NBCC is very clear that full documentation, as described by Kolmes, is required for NCCs:

NCCs shall include all electronic communications exchanged with clients and supervisees, including those through digital technology and social media methods, as a part of the record, even when strictly related to clerical issues such as change of contact information or scheduling appointments.
National Board for Certified Counselors, 2012

HIPAA On Documenting Emails and Texts

Law Book and GavelHIPAA does not get into this issue. HIPAA’s rules in this regard are focused on the security of any documentation you do decide to keep.

It would be up to you, the clinician and boss of the practice, to determine what information from emails and texts you need to maintain and for how long. You would, of course, make that decision in accordance with your professional ethics and all applicable laws.

Other Laws on Documenting Emails and Texts

Most licensing boards talk about how they would like licensees to document services and maintain records. It would be wise to see if your licensing board’s rules would impact how you maintain emails and texts. Other state laws could also have an impact.

Does Your Client Know About All This?

Clients certainly have an expectation that we will keep records. However, they may not have an expectation that the emails or texts they send will be part of that record.

I won’t pull out all the various quotes from laws and ethics codes here, but a number of ethical standards and laws require us to make sure clients know the nature of the information we maintain about them. This is especially true if we maintain that information electronically.

As such, it is wise to:

  • Talk to clients about email and texting, as has been discussed in other articles.
  • Make sure they know that any messages they send you, in any form, are part of their record and subject to all the same laws and rights of access that any record is subject to. So whatever you decide about how you maintain emails and texts, make sure clients know what you decided on.

Conclusions

There are three issues at play here: technical challenges to documentation, professional standards around it, and laws around it.

It seems that professional standards lean in the direction of documenting all emails and texts. The degree of leeway varies by profession, however. Also, some professions have leeway regarding whether or not messages must be kept verbatim, while others have none at all. This all assumes that the law doesn’t define exactly what you must do, of course.

Technological challenges and opportunities are also essential parts of the equation:

  • If there is an achievable way, with reasonable costs to the practice, of maintaining emails and text messages verbatim, then we can’t reasonably argue against doing so. In other words, if it’s a reasonable burden for you to set up a method of keeping all your texts and emails verbatim, you should probably do so.
  • If it is very difficult to maintain them verbatim, and you’ve come to this conclusion earnestly and in good faith, then it may be reasonable to address the need for documentation a little more creatively.

Lastly, we recommend that all clinicians examine their personal perception of both emails and texts. For example, many people view text messages quite lightly. They’re built to be treated that way, so it’s only natural. It’s important that regardless of how weighty these tech media feel, however, we plan our systems of documentation based on the importance of the messages they carry.

References

Find references for this article here.

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