Law & mental health

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1 The Chicago School of Professional Psychology Presented by: Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC 3000 Dundee Road Suite 303 Northbrook, Illinois 60062 (847) 564-8662 www.WCT-LAW.com Law and Mental Health Dr. James Walsh class June 9, 2008

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Transcript of Law & mental health

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The Chicago School of Professional Psychology

Presented by:

Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC

3000 Dundee Road Suite 303

Northbrook, Illinois 60062 (847) 564-8662

www.WCT-LAW.com

Law and

Mental Health

Dr. James Walsh class

June 9, 2008

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Table of Contents 1. Qualities of a Good Clinical Report 7-10 2. Minor Consent Issues 11-16 3. Dealing With the Issue of Mental Health Subpoenas 17-26 4. Subpoena Policy 27-32 5. Illinois Mental Health Confidentiality Act and Comparison 33-48 With FERPA and Other Provisions 6. Breaking Confidentiality: Duty to Warn 49-56 7. Current Standards for Neglect/Abuse Reporting 59-61 8. Fee Splitting: Implications for Physicians, Psychologists, 63-69 and Social Workers 9. Non-Custodial Parents: Legal Issues 71-78 10. What Happens When a School District Fails to Respond 79-86 to the Needs of a Suicidal Child? 11. The Final Word on School Health Services: 87-91 Cedar Rapids CSD v. Garrett F. 12. School Student Records Act 93-100

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Brooke R. Whitted I. Current Boards 1. Leslie Shankman School Corporation (President, board member)

Operating the University of Chicago Orthogenic School (Residential – ED)and the University of Chicago Hyde Park Day School (Days – gifted LD)

2. Marx Memorial Fund (Chair) – Cook County Juvenile Court (for delinquent wards’ life enrichment) 3. One-to-One Learning Center, Northfield (Board Member – Agency performing tutoring, evaluation and reading instruction services) 4. Community and Residential Services Authority (Gubernatorial Appointee; statutory agency overseeing placement of children) 5. University of Chicago Foundation for Emotionally Disturbed Children (Secretary, Board Member) 6. Glenview/Northbrook Youth Services (Advisory Board) 7. National-Lewis University (School Psychology Advisory Board) II. Former Boards 1. Glenview/Northbrook Youth Services 2. Heartspring/Wichita (Formerly Institute for Logopedics) 3. Glenkirk/Northbrook 4. Shelter, Inc./Arlington Heights (founding board member) III. Association Clients 1. Illinois Child Care Association 2. Illinois Psychological Association 3. I-ASPEC IV. Centers of Learning 1. University of Illinois at Chicago, Medical School, Department of Psychiatry (Instructor) 2. University of Chicago, as president of a separate but affiliated unit of the University 3. National-Louis University, member of committee advising the Education Department on Policy issues. 4. Loyola University, School of Social Work (former instructor) 5. Adler Institute – Chicago (guest speaker) 6. Roosevelt University (guest speaker)

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Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC

3000 Dundee Road Suite 303

Northbrook, Illinois 60062 (847) 564-8662

www.WCT-LAW.com

Qualities of a good clinical

report

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QUALITIES OF A GOOD CLINICAL REPORT

Brooke R. Whitted Whitted Cleary & Takiff, LLC 3000 Dundee Road, Suite 303

Northbrook, Illinois 60062 (847) 564-8662; fax (847) 564-8419

[email protected]

* This memo was drafted in response to an inquiry from a clinical psychologist who requested information about the “essential characteristics of an effective psychological evaluation.” I have several requirements for reports, and in fact have been teaching these principles in report writing for the past 20 years to UIC medical school doctors who want to specialize in child and adolescent psychiatry. The principles apply to ANY clinical report, not just psychological reports. I admit to a bias that I have to be able to utilize the report as a basis for motivating sometimes reluctant agencies (like school districts, state agencies, etc.) to pay for services that a patient/client might need. Qualities are as follows:

• The report must flow logically, be written in excellent prose, and clinical findings must be the basis for all recommendations presented;

• Ideally, the report should contain as a first section a comprehensive review of all clinical material that preceded the report;

• After a review of prior evaluations, there should be an introduction to tests or evals chosen, in light of prior testing efforts, and a highlighting of any gaps, if any, that the current examiner found in prior materials;

• If the examiner uses a testing vehicle not commonly used, it’s a good idea to educate the reader, in simple terms, as to the qualities the test is designed to evaluate, and the reason the examiner is selecting this particular evaluative tool;

• The recommendations section must contain recommendations! My pet peeve is a wishy washy “Recommendations will await the team meeting” or some such nonsense. The examiner must come right out and say what the patient needs, with as much specificity as possible, and relate the recommendations to the clinician’s findings. To me, a report is worthless if there is not a concrete, detailed series of recommendations.

• It is not required, but usually a good idea, to examine what will likely happen to the patient if the recommendations are NOT followed – this is required where serious harm or death could occur;

• The examiner must be willing to leave the office and accompany his or her report to the meeting that will usually be held to consider it. It is much easier to discount the conclusions of a professional who isn’t there;

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• If the report is written for a specific purpose, such as to convince a school district to declare a pupil eligible for ED special education services, the examiner must be conversant with the definitions used by the particular system appealed to. For example, the special education law has a different definition of “Emotionally Disturbed” than does the DSM. The examiner must know definitions from other systems (if applicable) prior to drafting a report.

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MINOR CONSENT ISSUES

Brooke R. Whitted

WHITTED, CLEARY & TAKIFF Suite 303 3000 Dundee Road Northbrook, Il l inois 60062 (847) 564-8662 (847) 564-8419 (Facsimile) [email protected] (Email)

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MEDICAL CONSENT PROVISIONS

Enclosed please find an abbreviated summary of certain medical consent provisions of Illinois statute and case law pertaining to children. MEDICAL CONSENT PROVISIONS I. The parent generally has the right and duty to make decisions concerning

medical care for his/her child.

A. However, the minor may consent:

1. When she is pregnant, she may consent to her own medical care and surgery, 410 ILCS 210/1;

2. When (s)he is married, the minor may consent to

his/her own medical care and surgery, 410 ILCS 210/1;

3. When (s)he is a parent, the minor may consent to the medical care, surgery, or dental care for his/her child, 410 ILCS 210/2.

4. When (s)he is 12 years of age or older, the minor may

consent to his/her treatment of venereal disease or for abuse of alcohol or narcotic drugs, 410 ILCS 210/4.

5. When (s)he is the victim of a criminal sexual assault or

abuse, the minor may consent to his/her medical care and/or counseling. 410 ILCS 210/3.

6. When she is pregnant, she may consent to an abortion

if considered mature enough to make that decision or if she can show it is in her best interest. Bellotti v. Baird, 443 U.S. 662, 99 S. Ct. 3035, 61 L. Ed. 2nd 797, (1979).

B. Physicians may consent to and render emergency medical care

to a child when a parent is not available during the emergency and it is the judgment of the physician that there is not additional time to await the parent's involvement. Ill. Rev. Stat., Ch. 111, section 4503.

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C. Dentists may consent to and render emergency dental care to a

child when a parent is not available during the emergency and it is the judgment of the dentist that there is not additional time to wait the parent's involvement. Ill. Rev. Stat., Ch. 111, section 4503.

II. The courts can and will intervene in a parent's decision which places a child

in danger or leaves a child in danger of death or permanent harm. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645, (1944) rehearing denied, 321 U.S. 804, 64 S. Ct. 784, (1944) [a case concerning child labor].

III. A parent's denial of medical treatment necessary to save a child's life is

neglect pursuant to the Juvenile Court. Intent to neglect is not a factor Wallace v. Labrenz, 411 Ill. 618, 104 N.E. 2d 769 (1952), cert. denied 344 U.S. 824, 73 S. Ct. 24, 97 L. Ed. 2nd 642 (1952).

IV. CONSENT TO TREATMENT/RIGHT TO REFUSE

A. GENERAL RULE

In Illinois the rights of a recipient of services to refuse generally accepted mental health or developmental disabilities services including, but not limited to, medication are set forth in sections 2-107 and 3-608 of the Illinois Mental Health Code. The right to refuse electro-convulsive therapy and any "unusual, hazardous or experimental services or psychosurgery" is set forth in section 2-110 of the Code and requires written and informed consent.

Under section 2-107, a recipient's guardian also has the right to refuse. The guardian may only consent with the approval of the court for such services as he or she deems to be in the best interests of the ward. ILL. REV. STAT. Chapter 91 1/2, section 2-110.

Informed consent requires the physician to describe the proposed treatment, indicate alternatives, describe risks and possible complications. It also requires knowing and voluntary consent on the part of the patient.

Both the notions of informed consent and the right to refuse treatment are based on the constitutionally recognized right to privacy.

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B. EXCEPTIONS

(1.) Qualified Right: The patient's right to refuse is not absolute

but rather qualified, so that services may be given without consent when it is necessary to prevent that patient from causing serious harm to himself or others.

A 1976 report of the Governor's Commission for Revision of the Mental Health Code of Illinois indicated that where a mentally disabled person poses a threat to himself or others, the interest of the state becomes more compelling than the patient's right to refuse treatment. Thus, medication and other treatment or habilitation which is necessary to arrest behavior may be administered over the recipient's objection.

(2.) Minors: Under the Illinois law, minors 14 and older may

receive outpatient counseling without the consent of their parents, up to five visits of 45 minutes each.

In addition, there are a few notable exceptions to the general rule that parents are responsible for consenting to the medical treatment of their minor children. In Illinois, minor girls of any age may obtain abortions, minors 12 or older may consent to treatment for venereal disease or drug abuse, and minors of any age may obtain birth control.

(3.) Emergencies: Section 2-111 of the Illinois Mental Health

Code provides for the administration of medical procedures without consent where the delay in obtaining consent would endanger the life or adversely and substantially affect the health of a recipient of services.

(4.) Incompetency: The right to refuse treatment may be exercised

by incompetent persons through their guardians. ILL. REV. STAT. Chapter 91 1/2, sections 2-107 and 2-110. Provisions for overriding the refusal or failure to consent in the case of an incompetent are not specifically spelled out in the statute; the guardianship procedure is an important means for obtaining treatment objected to on a basis reflecting incapacity to make a treatment decision.

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The Code provides in sections 2-100 and 2-101 that questions of competency and commitment are separate and, following commitment, all rights are unaffected. Accordingly, the commitment procedure reflects only tangentially on a recipient's capacity to make treatment decisions, with the strongest correlation being found in section 1-119(2) where admission is based on a person's inability to care for himself.

V. ILLINOIS PUBLIC ACT 87-460: CONSENT BY MINORS TO

MEDICAL PROCEDURES ACT AMENDMENTS

Illinois Public Act 87-460 amends two sections of the Consent by Minors to Medical Procedures Act, 410 ILCS 210 et. seq. (1992) (formerly Ill. Rev. Stat., ch. 111, para. 4500 et. seq. (1991)). The effect of this Act is to remove exceptions to the general provision that notice need not be provided to a parent when a minor who is 12 or older is receiving treatment for drug or alcohol abuse.

Section 4 of the amended Act now allows a minor who is 12 years old or older to consent to medical treatment for drug or alcohol abuse for himself or a member of the child's family. But more importantly, the amended Act no longer requires a person who furnishes such treatment to notify the parent or guardian upon the second occasion in which the minor is receiving such treatment.

Section 5 of the amended Act now sets forth explicit rules for counselors and physicians who give notice to the parent or guardian of the minor receiving treatment. Under the new Act, a physician or counselor is explicitly barred from providing notice to a parent or guardian without the minor's consent, unless the purpose is to protect the safety of the minor, another family member, or another individual. This rule is enhanced by an amendment to the section which removes the requirement that a physician or counselor must notify the parent or guardian upon the second such treatment of the minor.

The overall effect of these amendments is to accord greater deference to the minor's decision to receive treatment for drug and alcohol abuse. Furthermore, it eliminates the possible interference of a parent or guardian who seeks to bar such treatment.

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Brooke R. Whitted Whitted, Cleary + Takiff LLC 3000 Dundee Road-Suite # 303 Chicago, Illinois 60062 Phone: (847) 563-8662 Fax: (847) 564-8419 Website: www.wct-law.com

DEALING WITH THE ISSUE OF

MENTAL HEALTH SUBPOENAS

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Subpoenas

The IMHHDDCA has been amended over the years to restrict service of subpoenas in certain circumstances, without an accompanying court order. The provision, located at ILCS 110/10(d), states:

(d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act, unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. (Source: P.A. 86-1417). (emphasis added)

In order to become acquainted with the operation of this new section, which serves as a statutory command to all "persons" not to comply with an improperly served subpoena, it is necessary to examine the sections referred to. The specific categories applicable to subpoena service have been discarded previously.

A. In-Camera Inspection of File: Motion Required

Section 810(a)(1) concerns records and communications which are subpoenaed pursuant to a "civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense." Such disclosures are to be made only after the judge or hearing officer examines the documents in camera1 and determines:

1. disclosure is relevant and probative;

1 This means a preliminary review of the restricted file, by the judge, in his office and off the record.

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2. disclosure will not be unduly prejudicial or inflammatory;

3. disclosure is otherwise clearly admissible; 4. other satisfactory evidence (other than that

contained in the confidential record) is "demonstrably unsatisfactory”;

5. disclosure is more important to the "interests of substantial justice" than protection from injury to the therapist-recipient relationship or to the recipient 'or other' whom the disclosure is likely to harm.

B. What is ‘Relevant?’

This section goes on to say that no record or

communication between a therapist and patient is deemed "relevant" except the fact of treatment, the cost of services, and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a "compelling need" for production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.2

In Renzi v. Morrison, an Appellate Court held that a therapist who voluntarily disclosed a psychiatric patient's confidential communications while acting as a witness for a patient's spouse in divorce proceeding, could be held liable for damages. Renzi v. Morrison, 249 Ill.App.3d 5 (Ill. 1993). Illinois law stipulates that a witness' testimony when relevant is privileged information at judicial proceedings.

A therapist offered to testify for a patient’s husband. However, the patient objected that such testimony was privileged information and was confidential. The trial judge overruled the objection and allowed the testimony. The therapist revealed the patient’s conversations, test results and made an opinion on the patient’s emotional health. The testimony was significant enough to have "tipped the balance of the scale," in the case and the patient’s husband

2 It is our position that subpoenas received in the course of proceedings pursuant to the Mental Health

Code, such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order.

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was awarded temporary custody of the child. The Appellant court reasoned that the lower court did not appoint, subpoena, or order the therapist to testify but instead the therapist appeared voluntarily and offered testimony. The court held that the therapist’s function was to treat the patient, and not to advise the court.

C. Death of Patient Section 810(a)(2) concerns civil proceedings in

which a document is sought to be introduced after the death of the patient. The same procedure regarding an in camera examination by the judge or hearing officer is outlined. Post-death disclosures under this section must also involve the patient's physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party.

D. Actions Against Therapist

Section 810(a)(3) describes actions by a patient, or

by a representative of a deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient.

E. Court Ordered Examinations

Section 810(a)(4) concerns records and

communications "made to or by a therapist in the course of examination ordered by a court." These communications may be disclosed in civil, criminal, or administrative proceedings or in appropriate pretrial proceedings provided that the court has found that the patient has been adequately and "as effectively as possible" informed before submitting to such examination that such records would not be considered confidential or privileged. However, these records are only admissible as to issues involving the patient's physical or mental condition and only to the extent that they are germane to the proceedings.

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F. Case Study: Mandziara v. Canulli, 299 Ill.App.3d 593 (Ill. 1998). A cause of action exists against attorneys who issue subpoenas

for mental health records without first obtaining the required court order. This case, decided in September 1998, holds that a mental health patient may sue an attorney for improperly serving a subpoena for mental health records without first obtaining a court order.

i. Facts

An ex-husband filed an emergency petition seeking

modification of a court order awarding child custody to his ex-wife, Mary Mandziara (“Mandziara”). The petition alleged, among other things, that Mandziara attempted suicide and was hospitalized at Northwest Community Hospital. In connection with the petition, the husband’s attorney, Michael Canulli (“Canulli”), served a subpoena on the Hospital’s records custodian, Helen Langer (“Langer”), who appeared in court with the requested records. Langer did not give the records directly to Canulli. Instead, Canulli called Langer as a witness and she gave the records directly to the trial court. The judge immediately and improperly reviewed the records in open court and then questioned Mandziara about her hospitalization and about certain notes in the records. At the end of the hearing the court awarded custody to the ex-husband.

Mandziara sued Canulli for serving a subpoena

on the Hospital without first obtaining a court order.3 The trial court (a different court than the one that conducted the custody hearing) granted summary judgment to Canulli. Canulli filed a petition for

3 Initially Mandziara sued the Hospital for releasing the confidential information without a court order.

That case was dismissed on summary judgment after a finding that section 10(b) of the Act, cited supra, protected the Hospital from liability, While we do not condone the trial judge’s action in commenting upon Mandziara’s records in open court, this was beyond the control of [Langer]. We find the Hospital did nothing more than follow section 10(b) of the Act in that it provided the court with Mandziara’s medical records pursuant to a request from an interested party for the sole purpose of an in camera inspection to determine their relevance in a child custody issue. Hospitals must be advised that Mandziara v. Canulli does not absolve them from liability under the Act.

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sanctions under Illinois Supreme Court Rule 137 which the trial court denied. Canulli appealed the denial of sanctions and Mandziara cross-appealed the summary judgment for Canulli.

ii. The Holding of the Court

Canulli violated the Mental Health Confidentiality

Act by failing to obtain a court order before serving a records subpoena on the hospital.

iii. Analysis

There are some strong reasons for maintaining

confidentiality in mental health records. Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual’s right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it.

Section 110/10 of The Mental Health

Confidentiality Act, 740 ILCS 110/1 et seq., in pertinent part, provides as follows:

Except as provided herein, in any [court] or administrative ... proceeding, ... a recipient [of mental health services], and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s records or communications.

***

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Before a disclosure is made under subsection (a), any party to the proceeding or another interested person may request an in camera review of the record of communication to be disclosed. The court ... conducting the proceeding may hold an in camera review on its own motion ... the court ... may prevent disclosure or limit disclosure to the extent that other admissible evidence is sufficient to establish the facts in issue. The court ... may enter such order as may be necessary to protect the confidentiality, privacy, and safety of the recipient ...

***

No party to any proceeding described under ... subjection (a) ..., nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records.

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Section 110/15 of the Act also provides, “any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief.”

The appellate court found that Canulli’s actions

constituted a violation of the Act. The court rejected Canulli’s argument that he complied with the legislative intent of ensuring confidentiality by requesting that Langer produce the records to the court for an in camera review. Even assuming Canulli only intended the documents be reviewed in camera;4 the Act does not allow such disclosure without a court order.

The Act is carefully drawn to maintain the confidentiality of mental health records except in specific circumstances ... The General Assembly has made a strong statement about the importance of keeping mental health records confidential. If we were to hold Canulli did not violate the Act merely because he did not look at Mandziara’s records, we would be rewriting the statute, effectively eroding unmistakable legislative intent under the weight of judicial fiat ... Nothing in section 10(d) excuses a court order when the records are first examined by the trial judge.

In reaching these conclusions, the court noted that

Canulli supposedly had honorable intentions in wanting to protect his client’s children, but that these intentions had no bearing on the determination of whether Canulli violated the Act. “[M]otives have nothing to do with

4 The court also held that this argument was contradicted by testimony in the record of the trial court

hearing in which Canulli requested to be present when the judge reviewed the records.

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the legislative judgment that mental health records should not be surrendered as a matter of course.”

The court also indicated in some cases strict

compliance with the statute can be excused, such as in cases where a patient placed her own mental health at issue. In the present case, however, “Mandziara did not bring this action. She did not ask to be brought into a courtroom to face a challenge to the custody of her children.”

Lastly, the court concluded that an award of damages

could be appropriate pursuant to section 110/15 of the Act, and remanded the case to the trial court to determine causation and damages.

Some legal analysts note that Section 10(d) contains

no requirement of notice to the third person from whom the records are being sought of intent to seek an order authorizing disclosure or the issuance of the subpoena. The order merely “authorizes” -- it does not compel -- issuance of the subpoena or disclosure of the record. Obviously, a party must receive a notice of the motion for issuance of the order and should at that point interpose any objection by answer to the motion, citing the appropriate privilege or other protective statute. The authorization order does not preclude a motion to quash by the person subpoenaed.

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Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC

3000 Dundee Road Suite 303

Northbrook, Illinois 60062 (847) 564-8662

www.WCT-LAW.com

SUBPOENA

POLICY

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SUBPOENA POLICY

With increasing frequency, we are receiving subpoenas both for records

and requiring staff testimony in legal proceedings. This has most often occurred

in domestic relations proceedings in which one or both parties seek to compel

testimony by staff, taking them away from their duties with children. As the

frequency of these subpoenas has increased, their effect has become evermore

disruptive to the education of all of our students. Our board of directors has

therefore decided to implement the following procedures whenever a subpoena

is received in any civil matter not involving a dispute with the school itself. The

purpose of this policy is to ensure a stable and safe environment for our children

while at the same time attempting to reasonably accommodate individuals who

for one reason or another feel a need to request or compel testimony of staff or

copies confidential records.

I. SUBPOENAS FOR RECORDS ONLY

Whenever a subpoena for records only is received,

we will first determine if mental health records are included

in our files. If they are, as to those records only, Illinois law

requires that any properly served subpoena must be

accompanied by a court order. The court order must give

permission to the subpoenaing party to serve the subpoena

and it must also grant access to “personally identifiable”

mental health records. Service of a subpoena for mental

health records, without an accompanying court order as

above described, is a defectively served subpoena and will

be ignored. In addition, under Illinois decisional case law, an

attorney who defectively serves a subpoena for mental

health records is subject to a disciplinary complaint and

possible malpractice action.

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If there is a compelling reason, in the sole discretion

of the administration, a subpoena for records may be met by

a “motion to quash.” This means that we will challenge the

subpoena. We will challenge a subpoena if we think there is

information in the file that might cause harm to the child or

children in question, or if the subpoena is served for any

improper purpose. In such an event, we will retain legal

counsel, challenge the subpoena, and bill the subpoenaing

party accordingly, pursuant to III below.

II. SUBPOENA OF A WITNESS FOR TESTIMONY OR

DEPOSITION

1. SUBPOENA OF THE PRINCIPAL OR

EXECUTIVE DIRECTOR

If we receive a subpoena for the in-court testimony of

the Principal or Executive Director about our program, we

will usually accommodate the request but will try to restrict

testimony to a description of our programs. We will generally

resist multiple depositions, court dates, and the like and will

retain legal counsel for this purpose should testimony

become too disruptive for the Executive Director or our

program.

In addition, we will resist any subpoena if we think

that it was served for an improper purpose, such as to

harass or intimidate.

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2. SUBPOENA OF ANYONE OTHER THAN THE

EXECUTIVE DIRECTOR OR PRINCIPAL

We will resist all subpoenas for in-court testimony

served upon anyone other than our Principal or Executive

Director. The purpose of this policy is to ensure a stable and

continuous service environment for the children we serve. To

permit lawyers or parents in a domestic relations or other

dispute to act out their own conflicts by disrupting staff

through subpoenas that take our staff away from serving

children will not be tolerated. We expect families who insist

on doing this to pay for any and all costs, including our

attorney fees, if they cause a subpoena to be served that in

our sole discretion requires the involvement of our attorney.

III. PAYMENT FOR SERVICES

We extend the availability of our Executive Director

for testimony as a courtesy to our families. However, at

times in legal cases the records registrar is required to

“authenticate” a record. With respect to any testimony for the

narrow purpose of records authentication, we will allow our

records custodian to testify for a flat fee of $500.00. The time

of the Executive Director is billed to the subpoenaing party

for any other case at a rate of $250.00 per hour. Should a

subpoenaing party wish the Executive Director to be

qualified in the case as an “expert,” in other words, to offer

opinions rather than just testimony as to things observed or

heard, or testimony about our services, the hourly rate is

$500.00. Hourly charges apply to preparation, travel, waiting,

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and actual testimony time. We reserve the right to request

advance payment for these charges.

We, the parents of ______________(name)_________________, a

child served by ____(school or facility)_______, have read the above

policy on subpoenas. We certify that should we enter into a civil dispute

as with any party other than the school or faculty itself, we will not

subpoena anyone for testimony for any purpose in such proceedings; and,

we agree as part of our contract with this facility to pay for any and all

attorney fees that might be incurred as a result of a subpoena served by

us upon this facility which would in the sole discretion of management

require retention of legal counsel. We also understand, and agree in

advance, that our family may be dismissed from the facility if responding

to subpoenas and other legal procedures would, in the sole discretion of

the administration, be too burdensome and/or disruptive. We intend that

this document shall be incorporated into our current contract with this

facility.

X_________________________ X_________________________ (Parent) (Parent)

Principal

Accepted: X___________________________Title: Executive Director

(School or Facility)

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ILLINOIS MENTAL HEALTH CONFIDENTIALITY ACT AND COMPARISON WITH FERPA AND OTHER PROVISIONS _________________________________________ BROOKE R. WHITTED LARA A. CLEARY Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662 (847) 564-8419 (Facsimile) [email protected] (Email)

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(Revised 9/2001)

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The purpose of this memorandum is to summarize the provisions of the DMHDD Confidentiality Act, which is a federal grant act, and to highlight certain similarities to the Family Education and Right to Privacy Act (FERPA). The central themes are the right to inspect and review records and the restriction of personally identifiable information. FERPA is selected for certain comparisons because it contains many of the provisions found in state confidentiality statutes, including those found in Illinois. I. DEFINITIONS

The MHDDCA contains the following relevant definitions:

110/2. Definitions

§2. The terms used in this Act, unless the context requires otherwise, have the meanings ascribed to them in this Section.

(1) "Confidential communication" or "communication" means

any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient. Communication includes information which indicates that a person is a recipient.

(2) "Guardian" means a legally appointed guardian or

conservator of the person.

(3) "Mental health or developmental disabilities services" or "services" includes but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.

(4) "Personal notes" means:

(i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons;

(ii) information disclosed to the therapist by the

recipient which would be injurious to the recipient's relationships to other persons, and

(iii) the therapist's speculations, impressions,

hunches, and reminders.

(5) "Parent" means a parent or, in the absence of a parent or guardian, a person in loco parentis.

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(6) "Recipient" means a person who is receiving or has received mental health or developmental disabilities services.

(7) "Record" means any record kept by a therapist or by an

agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. Record does not include the therapist's personal notes, if such notes are kept in the therapist's sole possession for his own personal use and are not disclosed to any other person, except the therapist's supervisor, consulting therapist or attorney. If at any time such notes are disclosed, they shall be considered part of the recipient's record for purpose of this Act.

(8) "Record custodian" means a person responsible for

maintaining a recipient's record.

(9) "Therapist" means a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist.

FERPA defines Sole Possession Records at 20 U.S.C. §1232(g)(a)(4)(B) as follows:

(B) The term "education records" does not include -

(i) records of instructional, supervisory, and administrative

personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute. (Emphasis added.)

FERPA applies to educational institutional recipients of federal financial assistance.

The fundamental consequence for non-compliance with FERPA is that the agency in question (such as a state university) will not receive federal money if the provisions of the act are not obeyed. For example, if due process is not provided, the following FERPA provision applies:

(2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in attendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary,

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to challenge the content of such student's education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records.

II. WHAT RECORDS ARE PROTECTED?

Under both laws, all records are "protected" except those specifically mentioned in the Act. Such exceptions might include separate law enforcement files, records of persons employed but not in attendance, physician/psychologist records if generated by them in that capacity and if the subject is 18 years of age or older, so-called "directory" information, and "sole possession" records. None of these kinds of records are subject to disclosure under any circumstances, for the simple reason that they are not defined as "records" under FERPA. A closer examination of "sole possession" records may be helpful.

Sole possession records are not subject to disclosure if they fit within the above definitions contained in either law, the MHDDCA being far more specific. One who is seeking disclosure of the file cannot under any circumstances inspect, copy or challenge the contents of sole possession records. However, the courts' interpretations have been strict in this regard. Such records must be private notes, intended as personal memory aids, and inaccessible by others. A similar definition of so-called "personal notes" holds generally in most states.

In Illinois, there are even more specific provisions relating to personal notes and protocols:

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110/3. Records and communications - Personal notes of therapist - Psychological test material

§3. (a) All records and communications shall be confidential and

shall not be disclosed except as provided in this Act.

(b) A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient. Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administraive or legislative proceeding or any proceeding preliminary thereto.

(c) Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient. Requests for such disclosure shall be in writing and shall comply with the requirements of subjection (b) of Section 5 of this Act.

The MHDDCA's list of persons entitled to inspect and copy a mental health file upon

request, without consent, is very specific:

110/4. Persons entitled to inspect and copy recipient's record

§4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient's record or any part thereof:

(1) the parent or guardian of a recipient who is under 12 years of age;

(2) the recipient if he is 12 years of age or older;

(3) the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record;

Note here that there is no therapist "waiver" where

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(4) the guardian of a recipient who is 18 years or older;

(5) an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right; or

(6) an agent appointed under a recipient's power of attorney for health care or for property, when the power of attorney authorizes the access. (Emphasis added.)

Further, agency attempts to restrict access by requiring that someone "assist" the

recipient in interpreting the file are improper if imposed over a recipient's refusal:

110/4(b).

§4. (b) Assistance in interpreting the record may be provided without charge and shall be provided if the person inspecting the record is under 18 years of age. However, access may in no way be denied or limited if the person inspecting the record refuses the assistance. A reasonable fee may be charged for duplication of a record. (Emphasis added.)

III. RIGHT TO CHALLENGE

Under FERPA, there is a due process right to a hearing, as outlined on page 3, for the purpose of challenging the accuracy of the contents of a particular file. There is also a privilege for the subject of the record to insert his or her own version of an incident or occurrence, and should that record ever be disclosed, the subject's explanation must also be disclosed. There is a similar right in the DMHDDCA at 740 ILCS 110/4(c):

110/4(c):

§4. (c) Any person entitled to access to a record under this Section may submit a written statement concerning any disputed or new information, which statement shall be entered into the record. Whenever any disputed part of a record is disclosed, any submitted statement relating thereto shall accompany the disclosed part. Additionally, any person entitled to access may request modification of any part of the

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record which he believes is incorrect or misleading. If the request is refused, the person may seek a court order to compel modification.

(d) Whenever access or modification is requested, the request and any action taken thereon shall be noted in the recipient's record.

IV. CONSENTS FOR RELEASE OF INFORMATION

The MHDDCA is one of the country's most complicated in this area:

110/5. Written consent for disclosure of records and communications

§5. (a) Except as provided in Sections 6 through 12.2 of this Act, records and communications may be disclosed to someone other than those persons listed in Section 4 of this Act only with the written consent of those persons who are entitled to inspect and copy a recipient's record pursuant to Section 4 of this Act.

(b) Every consent form shall be in writing and shall specify the following:

(1) the person or agency to whom disclosure is to be made;

(2) the purpose of which disclosure is to be made;

(3) the nature of the information to be disclosed;

(4) the right to inspect and copy the information to be disclosed;

(5) the consequences of a refusal to consent, if any; and (6) the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and

(7) the right to revoke the consent at any time.

The consent form shall be signed by the person entitled to give consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. A copy of the consent and a notation as to any action taken thereon

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shall be entered in the recipient's record. Any revocation of consent shall be in writing, signed by the person who gave the consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. No written revocation of consent shall be effective to prevent disclosure of records and communications until it is received by the person otherwise authorized to disclose records and communications.

(c) Only information relevant to the purpose for which disclosure is sought may be disclosed. Blanket consent to the disclosure of unspecified information shall not be valid. Advance consent may be valid only if the nature of the information to be disclosed is specified in detail and the duration of the consent is indicated. Consent may be revoked in writing at any time; any such revocation shall have no effect on disclosures made prior thereto. (Emphasis added.)

And note that although redisclosures are not permitted, the patient may waive this right and authorize redisclosures in advance:

(d) No person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure. (Emphasis added.)

Confidentiality of mental health records in Illinois survives death, as opposed to ordinary medical records:

(e) Except as otherwise provided in this Act, records and communications shall remain confidential after the death of a recipient and shall not be disclosed unless the recipient's representative, as defined in the Probate Act of 19751 and the therapist consent to such disclosure or unless disclosure is authorized by court order after in camera examination and upon good cause shown. (Emphasis added.)

But ordinary consents are permitted in insurance coverage matters:

(f) Paragraphs (a) through (e) of this Section shall not apply to and shall not be construed to limit insurance companies writing Life, Accident or Health insurance as defined in Section 4 of the Illinois Insurance Code,2 and Non-Profit Health Care Service Plan Corporations, writing Health Care Service contracts, under The Non-Profit Health Care Service Plan Act,3 in obtaining general consents for the release to

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them or their designated representatives of any and all confidential communications and records kept by agencies, hospitals, therapists or record custodians, and utilizing such information in connection with the underwriting of applications for coverage for such policies or contracts, or in connection with evaluating claims or liability under such policies or contracts, or coordinating benefits pursuant to policy or contract provisions.

And in certain applications for benefits, no consent is required:

110/6. Information used in application for benefits - Disclosure without consent.

§6. Such information from a recipient's record as is necessary to enable him to apply for or receive benefits may be disclosed with consent obtained pursuant to Section 5 of this Act. Disclosure may be made without consent when despite every reasonable effort it is not possible to obtain consent because the person entitled to give consent is not capable of consenting or is not available to do so. The recipient shall be informed of any disclosure made without consent. The information disclosed without consent under this Section may include only the identity of the receipient and therapist and a description of the nature, purpose, quantity, and date of the services provided. Any request for additional information shall state with particularity what further information is needed and the reasons therefor. Refusal to consent to the disclosure of more information than is necessary to apply for or receive direct benefits shall not be grounds for in any way denying, limiting, or cancelling such benefits or refusing to accept an application or renew such benefits. Such information shall not be redisclosed except with the consent of the person entitled to give consent. (Emphasis added.)

Section 110/7.1 of the MHDDCA also allows certain interagency disclosures without consent. Section 110/9.2 also states:

110/9.2 Interagency disclosure of recipient information.

§9.2. Interagency disclosure of recipient information. For the purposes of continuity of care, the Department of Menthal Health and Developmental Disabilities and community agencies funded by the Department of Mental Health and Developmental Disabilities may disclose a receipient's record or communications, without consent, to each other, but only for the purposes of admission, treatment, planning, or discharge. Entities shall not redisclose any personally identifiable information, unless necessary for admission, treatment,

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planning, or discharge of the identified recipient to another setting. (Emphasis added.)

V. MANDATED DISCLOSURES

In certain instances, disclosures are required:

110/11. Disclosure of records and communications. (Child Abuse) (Risk of Harm)

§11. Disclosure of records and communications. Records and communications may be disclosed, (i) in accordance with the provisions of the Abused and Neglected Child Reporting Act;1 (ii) when, and to the extent, a therapist, in his or her sole discretion, determines that disclosure is necessary to initiate or continue civil commitment proceedings under the laws of this State or to otherwise protect the recipient or other person against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted upon the recipient or by the recipient on himself or another; (iii) when, and to the extent disclosure is, in the sole discretion of the therapist, necessary to the provision of emergency medical care to a recipient who is unable to assert or waive his or her rights hereunder; (iv) when disclosure is necessary to collect sums or receive third party payment representing charges for mental health or developmental disabilities services provided by a therapist or agency to a recipient under Chapter V of the Mental Health and Developmental Disabilities Code2 or to transfer debts under the Uncollected StatesClaims Act ...; (v) when requested by a family member, the Department of Mental Health and Developmental Disabilities may assist in the location of the interment site of a deceased recipient ...; (vi) in commitment proceedings under the Mental Health and Developmental Disabilities Code and proceedings and investigations preliminary thereto, to the State's Attorney for the county or residence of a person for whom involuntary or judicial admission is sought, or in which the person is found, or in which the facility is provided that the information so disclosed shall not be utilized for any other

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purpose nor be re-disclosed except in connection with the proceedings or investigations; (vii) when, and to the extent disclosure is necessary to comply with the requirements of the Census Bureau in taking the federal Decennial Census; and (viii) when, and to the extent, in the therapist's sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship. Any person, institution, or agency, under this Act, participating in good faith in the making of a report under the Abused and Neglected Child Reporting Act or in the disclosure of records and communications under this Section, shall have immunity from any liability, civil, criminal or otherwise, that might result ... (Emphasis added.)

The most important mandated releases above cover abused children and the codified Tarasoff duty.

There is also a more specific provision at §110/9:

110/9. Disclosure by therapist without consent.

§9. In the course of providing services and after the conclusion of the provision of services, a therapist may disclose a record or communications without consent to:

(1) the therapist's supervisor, a consulting therapist, members of a staff team participating in the provision of services, a record custodian, or a person acting under the supervision and control of the therapist;

(2) persons conducting a peer review of the services being provided;

(3) the Institute for Juvenile Research and the Institute for the Study of Developmental Disabilities; and

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(4) an attorney or advocate consulted by a therapist or agency which provides services concerning the therapist's or agency's legal rights or duties in relation to the recipient and the services being provided.

In the course of providing services, a therapist may disclose a record or communications without consent to any department, agency, institution or facility which has custody of the recipient pursuant to State statute or any court order of commitment.

Information may be disclosed under this Section only to the extent that knowledge of the record or communications is essential to the purpose for which disclosure is made and only after the recipient is informed that such disclosure may be made. A person to whom disclosure is made under this Section shall not redisclose any information except as provided in this Act. (Emphasis added.)

VI. SUBPOENA SERVICE

The DMHDD Confidentiality Act has been amended to restrict service of subpoenas in certain circumstances, without an accompanying court order. The new provision, which is contained at 740 ILCS 110/10(d) states:

(d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, no rhis or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act, unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. (Source: P.A. 86-1417.) (Emphasis added.)

In order to become acquainted with the operation of this new section, which serves as a statutory command to all "persons" not to comply with an improperly served subpoena, it is necessary to examine the sections referred to. That is the purpose of this memorandum.

A. Civil, Criminal, or Administrative Proceedings Where Patient's Mental Conditional is Introduced

Section 10(a)(1) concerns records and communications which are subpoenaed

pursuant to a "civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element

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of his claim or defense." Such disclosures are to be made only after the judge or hearing officer examines the documents in camera5 and determines:

1. disclosure is relevant and probative;

2. disclosure will not be unduly prejudicial or inflammatory;

3. disclosure is otherwise clearly admissible;

4. other satisfactory evidence (other than that contained in the confidential record) is "demonstrably unsatisfactory";

5. disclosure is more important to the "interests of substantial justice" than

protection from injury to the therapist-recipient relationship or to the recipient "or other" whom the disclosure is likely to harm.

This section goes on to say that no record or communication between a therapist and patient is deemed "relevant" except the fact of treatment, the cost of services, and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a "compelling need" for production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.6

5This means a preliminary review of the restricted file, by the judge, in his office and off the record.

6It is our position that subpoenas received in the course of proceedings pursuant to the Mental Health Code, such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order, unless the therapist has determined a disclosure is necessary to "initiate or continue civil commitment proceedings" per 740 ILCS 110/11 (outlined at Section V).

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B. Documents Sought After Death of Patient Where Mental Condition is at Issue

Section 10(a)(2) concerns civil proceedings in which a document is sought to

be introduced after the death of the patient. The same procedure regarding an in camera examination by the judge or hearing officer is outlined. Post-death disclosures under this section must also involve the patient's physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party.

C. Actions by Patient or, if Deceased, Patient's Representative, Against Therapist

Section 10(a)(3) describes actions by a patient, or by a representative of a

deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient.

D. Records Generated in the Course of a Court Ordered Evaluation

Section 10(a)(4) concerns records and communications "made to or by a therapist in the course of examination ordered by a court." These communications may be disclosed in civil, criminal, or administrative proceedings or in appropriate pretrial proceedings provided that the court has found that the patient has been adequately and "as effectively as possible" informed before submitting to such examination that such records would not be considered confidential or privileged. However, these records are only admissible as to issues involving the patient's physical or mental condition and only to the extent that they are germane to the proceedings.

E. Proceedings Involving Validity of Insurance Coverage When Mental Condition of Patient is at Issue

Section 10(a)(7) concerns records and communications of the recipient being

disclosed in any civil or administrative proceeding involving the validity of benefits under a life, accident, health, or disability insurance policy or certificate, or health care service plan contract. However, disclosure is only allowed to the extent that the patient's mental condition or treatment or services is a material element of any claim or defense.

F. In Any Proceedings Under the DMHDD Confidentiality Act

Section 10(a)(8) concerns records or communications being disclosed pursuant to any action brought under the DMHDD Confidentiality Act, provided that the information disclosed shall not be utilized for "any other purpose."

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VII. NON-DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION

As can be seen, the most fundamental rule of any confidentiality code is that personally identifiable information is prohibited from being disclosed except with the consent of the subject of the record in question. There are other exceptions, which might include the various school administrative officials, officials in an institution where a student seeks to enroll, disclosures in connection with an application for financial aid, natural parents, disclosures necessary to protect the health and safety of the subject of the record, or in response to judicial order or lawful subpoena. Any disclosures made by the institution must be documented. Under both acts, when a student or other subject of a file reaches the age of 18, only he or she may consent to the disclosure, not the parents. VIII. CONFIDENTIALITY RULES UNDER THE

EDUCATION OF THE HANDICAPPED ACT

The Education of the Handicapped Act (EHA) also has its own confidentiality provision. This act is broader than FERPA and encompasses children age 3 to 21 on whom files are generated. The act applies to all agencies involved in receiving money under the Education of the Handicapped Act. The right to access by parents is more extensive, and the parental consent requirements are slightly different. There are more detailed procedures for safekeeping and destruction of files. Unlike FERPA, when the student reaches 18, the severity of his or her disability must be considered before the rights transfer to the pupil. Each state is required to have enforcement sanctions in the event of non-compliance with the EHA confidentiality provision. IX. MISCELLANEOUS

A note on substance abuse: a physician may disclose to parents the fact that their minor child has sought substance abuse counseling or treatment from him, but the physician must tell the parents of an age-12-or-older minor after the second treatment. The only exception to mandatory disclosure after the second treatment for substance abuse problems is certification by the physician that doing so would jeopardize treatment. In that instance, the physician may wait up to three months before disclosing. However, if a member of the family is abusing drugs or alcohol, no disclosure need be made (see more detailed memo on this subject).

A note on abuse reporting: In all states, confidentiality is waived when a mandated reporter has reasonable cause to believe an abuse or neglect situation is present. Moreover, any reports pursuant to abuse reporting acts are immune from civil suit. Depending on the state, sanctions may be present, for the failure of a mandated reporter to submit a report of abuse or neglect. Such sanctions might include loss of a professional license.

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Brooke R. Whitted

Lara A. Cleary WHITTED, CLEARY + TAKIFF, LLC

3000 Dundee Road, Suite 303 Northbrook, Illinois 60062

(847) 564-8662 (847) 564-8419 (fax)

[email protected]

BREAKING CONFIDENTIALITY:

DUTY TO WARN

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INTRODUCTION

The Illinois Mental Health and Developmental Disabilities Confidentiality Act (“MHDDCA”), 740 ILCS 110/1 et seq., provides protection for communications between mental health practitioners and their patients. Pursuant to the MHDDCA, no disclosures of confidential information may be made to anyone without the express written permission of the patient except in a few, very specific, exceptions. One of those exceptions is the duty to warn.

As a general rule, a person owes no duty to warn a third party concerning the potentially dangerous conduct of another. In many jurisdictions, however, case law has carved out exceptions to that rule, where a "special relationship" is involved. In Tarasoff v. Regents of the University of California, the landmark case on this subject, the California Supreme Court7 held that a psychologist who had knowledge of a patient's intention to harm a specific individual had a duty to exercise reasonable care to warn the intended victim. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976).

TARASOFF Facts: Prosenjit Poddar was a Bengali of the Harijan (untouchable) caste who

had worked his way through the Indian educational system and eventually traveled to California to study naval architecture at the University of California-Berkley in 1967. One year later he met Tatiana Tarasoff. Despite Prosenjit’s attempts at romance with Tatiana, she was uninterested and rebuffed his advances. After Tatiana’s final rejection of him, Prosenjit began to exhibit symptoms of clinical depression; eating and sleeping irregularly, failing to keep up with his classes or his job, and listening endlessly to tape recordings he had secretly made of his conversations with Tatiana. Upon the urging of a friend, Prosenjit agreed to seek mental health counseling at the University of California-Berkeley Hospital. In August 1969, Prosenjit confided to the clinical psychologist he was seeing at the hospital of his intention to kill Tatiana. After consulting with two psychiatrists, the psychologist decided to commit Prosenjit for observation and reported the threat to campus police. Although the police briefly detained Prosenjit and searched his apartment, he was eventually released because he appeared rational and stated that he would stay away from Tatiana. Prosenjit never returned to therapy and his psychologist’s supervisor directed that no further action be taken to commit Poddar or warn Tatiana or her parents of the threats. On October 27, 1969, Prosenjt Poddar killed Tatiana Tarasoff. After Tatiana’s death, her parents filed suit against the University. The lower courts dismissed the civil action against

7 Although the seminal case in this area, Tarasoff was not a U.S. Supreme Court case but rather just a Supreme Court of California case. Because it was not a U.S. Supreme Court decision, no other states were bound by Tarasoff, however many states such as Illinois embraced and eventually appear to have implicitly codified the duty to warn requirement.

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the University, finding that there was no cause of action because the University owed no duty of care to Tatiana, as she was not their patient, but rather just a third party.

Holding: The California Supreme Court reversed the decision of the lower courts

and allowed Tatiana’s parents to maintain their cause of action against the University of California for the failure to warn. The case was remanded back to the district court for a retrial.

Reasoning: The Court carefully considered the impact of the confidential nature of

mental health communications and the necessity of obtaining mental health services, but determined that the public policy interest in protecting the public from a known threat of harm prevailed. The Court stated:

We realize the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. Tothe contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.

The Tarasoff opinion does not decide whether the University was negligent. The

case merely holds that the Plaintiff has stated a cause of action that, if proved at trial, would entitle Tatiana’s parents to relief. On remand to the lower court, the trier of fact would have had to decide whether the University’s failure to notify the victim or her family did in fact constitute a breach of the duty to the third-party victim. The trial court could have found that by notifying the police, the University had exercised due care and was not negligent. Interestingly, the case was settled by the parties out of court prior to retrial.

IMPACT OF TARASOFF Following the issuance of the Tarasoff opinion, an increasing number of jurisdictions held that personnel involved in the psychiatric treatment of a patient have not only a right, but a duty to warn of a patient's potential dangerousness.

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Non-Illinois Cases Following Tarasoff In Thompson v. County of Alameda, another California case, a juvenile delinquent stated that if released from custody, he would kill a young child residing in his neighborhood, but he named no specific victim. Upon his release from the county institution, the delinquent made good on his threat by killing a young neighbor. In a lawsuit against the county institution, however, the California Supreme Court held that in the absence of a readily identifiable foreseeable victim, there was no duty to warn. The existence of an identifiable group of potential victims was insufficient to create a duty to warn, in light of the infrequency with which threats of violence by a patient are carried out, and in light of society's interest in encouraging free communication between therapist and patient. Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980). In Brady v. Hopper, individuals shot by John Hinckley during his attempted assassination of Ronald Reagan sued Hinckley's psychiatrist. Again, however, the federal district court in that case held that even in a situation involving a special relationship, such as the one between a therapist and patient, the therapist does not owe a duty to the world at large, and cannot be held liable for injuries inflicted on third persons, absent specific threats to a readily identifiable victim. Brady v. Hopper, 570 F. Supp. 1333, 1338 ( D. Colo. 1983). Several courts have discussed the foreseeability component of the duty to warn, and have imposed upon therapists an affirmative duty to investigate the possibility of dangerousness. In Bradley Center Inc. v. Wessner, a private hospital was held liable for failing to pursue "further attempts to evaluate in a more intensive fashion the inside deterioration" of a patient who, while released on a one-day pass, murdered his ex-wife. Bradley Center Inc. v. Wessner, 161 Ga. App. 576, 287 S.E. 2d 716, 723 (1982). In Hedlund v. Superior Court of Orange County, a California court recognized that the duty to warn is "inextricably interwoven with the diagnostic function," and that "the duty imposed on the therapist... is first to diagnose or recognize the danger posed by the patient..." Hedlund v. Superior Court of Orange County, 34 Cal. 3d 695, 669 P.2d 41, 45 (1983). Under these cases, then, the therapist has a duty to take some initiative in determining a patient's dangerousness. Illinois Cases Following Tarasoff The first Illinois case to recognize that a duty to warn might exist was Kirk v. Michael Reese Hospital and Medical Center. In that case the Illinois Supreme Court found that a hospital had no duty toward an individual injured while riding in the automobile driven by a recently released patient who allegedly had not been warned not to mix alcohol with his prescribed medication. Stressing the unreasonable burden that would be placed upon a hospital if it were held liable for all of the harmful acts of released patients, the court held that no duty arose, since the third party who was injured had no "special" relationship with either the hospital or the patient.

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The court took care, however, to distinguish the instant case, in which it found no duty, from cases cited by the plaintiff, in which there were allegations that treatment personnel negligently released a patient, or were aware of a patient's dangerous propensities, and in which courts imposed a duty to take reasonable measures to protect third parties. Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 513 N.E. 2d 387 (1987). Going a step further, in Novak v. Rathnam, the Illinois Appellate Court stated that it believed "that Illinois would adopt Tarasoff's affirmative duty on therapists to warn foreseeable third parties." Novak v. Rathnam, 153 Ill. App. 3d 408, 505 N.E. 2d 773 (3rd Dist. 1987). Not long thereafter, in the case of Eckhardt v. Kirts, Novak's prediction was proven correct when the Appellate Court, citing Tarasoff, Brady, Thompson and Kirk, held that under certain circumstances, a psychiatrist would have a duty to warn threatened individuals about a potentially dangerous patient. Joyce Eckhardt, who suffered from mental disabilities and who had been under the treatment of Dr. Thomas Kirts, a psychiatrist, shot and killed her husband Harold. In a suit filed by Harold Eckhardt's mother against Dr. Kirts, the Appellate Court, while ultimately finding that Dr. Kirts owed no duty to the plaintiff, did establish three criteria for determining the existence of a duty to warn: "First, the patient must make specific threat(s) of violence; second, the threat(s) must be directed at a specific and identified victim, and third, a direct physician-patient relationship between the doctor and the plaintiff or a special relationship between the patient and the plaintiff." The court concluded that Dr. Kirts had no duty to warn Harold Eckhardt about Joyce Eckhardt, since Mrs. Eckhardt had never made any specific threats against her husband. The court refused to consider whether the required "special relationship" existed in this case, leaving open the question of whether such a relationship exists in a situation involving a patient, a psychiatrist and the patient's spouse. Eckhardt v. Kirts, 179 Ill. App. 3d 863, 534 N.E. 2d 1339 (2nd Dist. 1989). In Charleston v. Larson, 297 Ill.App.3d 540, 606 N.E.2d 793 (1st Dist. 1998), a nurse at a psychiatric facility brought an action against one of the facilities psychiatrists after she was attacked by a patient at the facility. Prior to the attack, the patient-attacker had voluntarily admitted himself on an emergency basis and had been seen by the defendant. The plaintiff nurse claimed that pursuant to Eckhardt, the defendant psychiatrist had an affirmative obligation to warn plaintiff or other facility employees of the attacker-patient’s violent propensities. The defendant claimed he had no duty because the attacker-patient had never made a specific threat against the nurse. He also argued that no physician-plaintiff relationship existed between the doctor and plaintiff nor did a special relationship exist between the plaintiff and the attacker-patient. The court accepted defendant’s arguments and upheld the lower court’s dismissal of plaintiff’s cause of action.

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Illinois Appears to Codify Tarasoff Thus, after Eckhardt, Illinois appeared to adopt an implicit duty to warn, although this has yet to be tested in Illinois courts. Illinois statutory law has addressed the duty in two statutes, the Mental Health Code and the Mental Health and Developmental Disabilities Confidentiality Act. At 740 ILCS 110/11, The Illinois Mental Health and Developmental Disabilities Confidentiality Act provides that records and communications may be disclosed:

(viii) when, and to the extent, in the therapist's sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship;

In addition, at 405 ILCS 5/6-103 the Illinois Mental Health Code provides an

exemption from liability for practitioners who have made a good faith effort to fulfill the duty to warn:

(b) There shall be no liability on the part of, and no

cause of action shall arise against, any person who is a physician, clinical psychologist, or qualified examiner based upon that person's failure to warn of and protect from a recipient's threatened or actual violent behavior except where the recipient has communicated to the person a serious threat of physical violence against a reasonably identifiable victim or victims. Nothing in this Section shall relieve any employee or director of any residential mental health or developmental disabilities facility from any duty he may have to protect the residents of such a facility from any other resident.

(c) Any duty which any person may owe to anyone other than a resident of a mental health and developmental disabilities facility shall be discharged by that person making a reasonable effort to communicate the threat to the victim and to a law enforcement agency, or by a reasonable effort to obtain the hospitalization of the recipient. (Emphasis added)

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SUMMARY

Under current Illinois law, mental health practitioners may (and very possibly must) break confidentiality and warn third parties (and this means, when applicable, the intended victim and law enforcement authorities) if the harm is reasonably foreseeable, which means:

1. The patient has made specific threats of violence; 2. To a specific and identified victim 3. There is either a physician-patient relationship or a "special" relationship

between the patient and the victim; and 4. The disclosure must be to the extent necessary to allow the victim to avoid

harm and allow the authorities to intervene.

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Brooke R. Whitted Lara A. Cleary

WHITTED, CLEARY + TAKIFF, LLC 3000 Dundee Road, Suite 303

Northbrook, Illinois 60062 (847) 564-8662

(847) 564-8419 (fax) [email protected]

CURRENT STANDARDS FOR NEGLECT/ABUSE

REPORTING

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CURRENT STANDARDS FOR NEGLECT/ABUSE REPORTING BECAUSE CHILD IS NOT RECEVING

PROPER MENTAL HEALTH CARE

By Brooke R. Whitted

Lara A. Cleary Whitted Cleary & Takiff LLC

QUERY:

Under the Abused and Neglected Children’s Reporting Act (“ANCRA”), may a parent or caretaker be reported for potential child neglect for failing to obtain mental health services for a seriously mentally ill child? RESPONSE:

Yes, if the lack of mental health treatment could, if left untreated, constitute a serious or long-term harm to the child. ANALYSIS:

ANCRA8 requires mandated reporters to report any suspected abuse or neglect. It also provides rebuttable “good faith” immunity for such reports. 325 ILCS 5/9. At 325 ILCS 5/3 neglect is defined, in part, as “Any child who is not receiving proper nourishment or medically indicated treatment or other care necessary for child's well being” including “care not provided solely on the basis of present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians.”

Appendix A to the ANCRA regulations at 89 Ill.Admin.Code 300 provides a more complete definition of “medical neglect,” and includes several factors to consider, such as the probable outcome without medical treatment, the seriousness of the health problem, and the generally accepted health benefits of the prescribed treatments. This definition also provides that neglect may be found where there is “lack of follow-through on a prescribed treatment plan for a condition that could become serious enough to constitute serious or long-term harm to the child if the plan goes unimplemented.”

Thus, the harm without treatment needs to be of a very serious nature. Generally speaking, in the absence of a compelling state interest, parents have a right to refuse 8 The Abused and Neglected Children’s Reporting Act

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medical treatment on behalf of their children. The US Supreme Court has articulated the concept of personal liberty found in the Fourteenth Amendment as a right to privacy which extends to certain aspects of a family relationship United States v. Orito, 413 U.S. 139 (1973). Serious harm to the child, however, will constitute a compelling interest to override this right and allow the state to step in under the doctrine of parens patriae. Prince v. Massachusetts, 321 U.S. 158 (1944). State case law will differ over what constitutes “serious harm.”

If the parent is attempting some health intervention, albeit not precisely the conventional treatment recommended, it may not be neglect. The leading case in this area, Matter of Hofbauer, 47 N.Y. 2nd 648 (N.Y. 1979), involved a child suffering from Hodgkin’s disease, which is commonly fatal if not treated. Conventional physicians had recommended radiation and chemotherapy for the child. A New York Court of Appeals found no medical neglect on the part of parents who failed to follow the conventional treatment and instead placed the child under the care of a licensed physician advocating alternative therapies. The court stated “in our view, the court’s inquiry should be whether the parents, once having sought accredited medical assistance and having been made aware of the seriousness of their child’s affliction and the possibility of cure if a certain mode of treatment is undertaken, have provided for their child a treatment which is recommended by their physician and which has not been totally rejected by all responsible medical authority.” Id. at 656. (emphasis added) There was evidence at hearing to support some effectiveness of the unconventional treatment.

Illinois law also provides that it is not neglect if the parent objected to medical treatment on religious grounds. 325 ILCS 5/3. However, when the treatment needed by a child is proven to be matter of life and death, courts will routinely overrule the parent’s religious arguments, find the child dependent and assign a guardian to consent to medical care. See In re Willmann, 24 Ohio App.3d 191 (Ohio 1986). (Child with aggressive cancer deemed dependent by court where parents believed he could be healed by prayer. Court heard evidence that the child would likely die within one year without recommended surgery).

There are no cases in Illinois directly addressing medical neglect in the mental health context. In Illinois, most cases have dealt with serious medical issues such as cancer, which, as described above, without treatment, could result in almost immediate death to the child. However, there is also a line of cases dealing with young children who generally experience failure to thrive, so while not in imminent danger of death, there is a substantial risk of serious future harm. The Illinois Courts did find medical neglect in these “failure to thrive” cases. For example, in In re Edward T., 343 Ill.App.3d 778 (1st Dist. 2003) the court found that a child diagnosed with non-organic failure to thrive was neglected. The 10-month old child weighed only 13.9 pounds, had severe developmental delay, and had not received any immunizations. The court heard evidence that within just a week of a hospitalization the child had gained a pound, was eating well, and had begun to hold his head up and even crawl. See also In re K.T., 361 Ill.App.3d 187 (1st Dist. 2005), in which one child with severe disabilities who needed continuous care and monitoring was referred for home health nursing services and physical, occupational and

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speech therapy. Neglect was found when the parent failed to enroll the child in these prescribed services.

An Illinois Appellate Court has also found medical neglect where the child’s health was jeopardized but not immediately life-threatening. In In re Stephen K., 867 Ill.App.3d 7 (1st Dist. 2007), the court upheld a finding of medical neglect by the parents of a 17 year old with Cystic Fibrosis. The parents had consistently missed medical appointments, failed to comply with treatment suggestions, and neglected to utilize programs that would have provided them with subsidized nutritional supplements. While the child was not facing immediate death, he failed to gain weight and was chronically malnourished.

Other state cases provide guidance regarding medical neglect in the mental health context. In one such case, In the Matter of Amanda M., 812 N.Y.2d 708 (N.Y. 2006), the court found a custodial grandparent had medically neglected her grandchild for failing to provide only a single therapy session following the child’s sexual assault. After the child was taken to a hospital hearing voices and threatening to hurt herself and her grandmother, the grandmother continually missed follow-up counseling sessions.

Similarly, in In the Matter of William AA, 24 A.D.3d 1125 (N.Y. 2005), a parent’s handling of her child’s mental health situation was deemed medical neglect. The child, who had been diagnosed with Depression and ODD, was supposed to be taking certain medications recommended by a psychiatrist. First, the parent failed to follow up with the child’s physician to track side effects. When the child had problems the parent felt were related to the medication, the parent discontinued it without informing the psychiatrist. The court held that the New York family Court had proven that the parent’s actions and inactions placed the child’s physical, emotional or mental health in imminent danger of impairment. See also Miller v. Orbaker, 17 A.D.3d 1145 (N.Y. 2005), in which the court upheld a sole custody award after a parent refused to acknowledge her child’s mental health issues, and indicated that, if awarded custody, she would discontinue his medication and pursue only “church,” no other mental health treatment. The court noted that custody was properly with the father, who recognized the special needs of the child and was prepared to obtain the proper treatment for him.

Conclusion The decisional case law establishes a foundation upon which an Illinois court would likely enter a finding of neglect where parents fail to obtain medically prescribed mental health services and treatment for their child. The central issue is whether the failure would result in serious, long-term harm to the child.

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BROOKE R. WHITTED MALCOLM C. RICH

Whitted, Cleary + Takiff, LLC 3000 Dundee Road, Suite 303

Northbrook, IL 60062 (847) 564-8662

(847) 564-8419 (Facsimile) [email protected] (Email)

FEE SPLITTING:

Implications for Physicians,

Psychologists and Social Workers

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FEE SPLITTING: IMPLICATIONS FOR PHYSICIANS, PSYCHOLOGISTS AND SOCIAL WORKERS

BY BROOKE R. WHITTED AND MALCOLM C. RICH

Introduction We are often consulted by healthcare clients with respect to contractual arrangements into which they have entered with hospitals, healthcare networks, PPO's and the like. The agreements frequently provide that payment should be made based on a percentage of collections. We have attempted to set forth in this brief memorandum all of the relevant provisions in Illinois and Federally that point to a conclusion that fee splitting in any form is inadvisable. Psychologists

Under the disciplinary provisions of the Illinois Clinical Psychologist Licensing Act, it is stated:

The Department [Illinois Department of Professional Regulation] may refuse to issue, refuse to renew, suspend, or revoke any license, or may place on probation, censure, reprimand, or take other disciplinary action deemed appropriate by the Department, including the imposition of fines not to exceed $5000 for each violation, with regard to any license issued under the provisions of this Act for any one or a combination of the following reasons:

• • • (12) Directly or indirectly giving or receiving from any person, firm, corporation, association or partnership any fee, commission, rebate or other form of compensation for any professional service not actually or personally rendered. (225 ILCS 15/15 (12); emphasis added)

The prohibition on fee splitting arrangements for psychologists can be found under the Rules for Administration of the Clinical Psychologist Licensing Act, Title 68, Chapter VII, Subchapter b, Part 400, Section 1400.80, Unethical, Unauthorized, or Unprofessional Conduct:

The Department may suspend or revoke a license, refuse to issue or renew a license or take other disciplinary action, based upon its finding of “unethical, unauthorized, or unprofessional conduct “ within the meaning of Section 15(7) of the Act which is

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interpreted to include, but is not limited to, the following acts or practices:

• • • f) Directly or indirectly giving to or receiving from any person, firm or corporation any fee, commission, rebate or other form of compensation for any professional services not actually rendered;…(emphasis added)

Physicians: The Prohibition Against Fee Splitting as a Public Policy Consideration The prohibition against fee splitting arrangements is not limited to the profession

of psychology. There is a pervasive view in state and federal legislation and administrative regulations that fee splitting violates the public interest in such areas as the practice of medicine, optometry, and law.

For example, in March 2002, the Illinois Attorney General issued an opinion that an insurance contract requiring physicians to provide 5% of revenues to a healthcare management company as a fee violates the Illinois Medial Practice Act of 1987, 225 ILCS 60/22(A)(14), with respect to Illinois licensed physicians. The Act states:

The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds: Dividing with anyone other than physicians with whom the licensee practices in a partnership, Professional Association, limited liability company, or Medical or Professional Corporation any fee, commission, or other form of compensation for any professional services not actually and personally rendered…”(emphasis added)

There have been several Illinois Appellate Court cases that prohibit payments by physicians for management or other services based upon a percentage of professional income. In E & B Marketing Enterprises, Inc. v. Ryan, 209 Ill. App. 3d 626 (1991), a marketing firm promoted the name and practice of a physician in return for a consulting fee of 10% on all billings collected in connection with these referrals. This procedure was considered illegal fee splitting under the Illinois Medical Practice Act.

Similarly, an Illinois Appellate Court struck down a practice where optometrists and ophthalmologists entered into an arrangement where the optometrists would refer patients in need of ophthalmology services to the licensed physicians. Practice Management, LTD v. Schwartz, 256 Ill App 3d 949 (1993), appeal denied, 155 Ill 2d

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575(1994) The court found that a danger of fee splitting arrangements is that they may motivate recommendations based on self-interest, rather than the competence of the professional.

In 1999, an Illinois Appellate Court found that a physician may argue that a contract was an invalid fee splitting arrangement under the Illinois Medical Practice Act, even when the physician was at fault in negotiating and entering into the contract. TLC Laser Ctr., Inc. v. Midwest Eye Institute, Ltd, 306 Ill. App. 3d 411 (1 Dist. 1999). Medicare/Medicaid Fraud and Abuse: Sobering Consequences For a provider receiving federal dollars, the Medicare and Medicaid fraud and abuse statute provides a serious and sobering prohibition against fee splitting. Title 42 U.S.C. Section 1320a-7b states:

Criminal penalties for acts involving Federal health care programs. (b) Illegal remunerations.

(1) Whoever knowingly and willfully solicits or receives any remuneration…directly or indirectly, overtly or covertly, in cash or in kind –

(A) in return for referring an individual to any person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program… shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years or both.

(2) Whoever knowingly and willfully offers or pays any remuneration…directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person –

(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program… shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years or both. (emphasis added)

Social Workers Social workers appear to have been granted a slight leeway in their administrative rules:

Section 1470.96 Unethical, Unauthorized and Unprofessional Conduct:

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(a) The Department may suspend or revoke a license, refuse to issue or renew a license or take other disciplinary action based upon its finding of "unethical, unauthorized, or unprofessional conduct" within the meaning of Section 19 of the Act, which is interpreted to include, but is not limited to, the following acts of practices:

• • • (6) Directly or indirectly giving to or receiving from any person, firm or corporation any fee, commission, rebate or other form of compensation for any professional services not actually rendered. Social workers shall not participate in illegal fee splitting arrangements, nor shall they give or accept kickbacks for referrals. However, it is not unethical for social workers to utilize referral services for which a fee is charged, nor to participate in contractual arrangements under which they agree to discount fees; (Title 68, Professions and Occupations: Ch. VII, DPR §1470 - emphasis added).

Social workers, however, are still subject to the fraud and abuse laws and should avoid fee arrangements that pay based on a percentage of collections. Conclusion Fee splitting arrangements for Illinois psychologists are prohibited by the Illinois Clinical Psychologist Licensing Act and its accompanying regulations. In addition, for providers receiving federal dollars, the Medicare and Medicaid federal programs prohibit fee splitting arrangements and impose both civil and criminal penalties. In general, many healthcare occupations consider fee splitting to be against public policy and therefore prohibit these types of arrangements. Suggestions/Recommendations We recommend that our healthcare clients renegotiate all contracts capable of interpretation as fee splitting arrangements. What should be suggested to the third party is a flat fee consulting agreement with a one year fairness or merit evaluation to determine whether the arrangement should be changed in any way. In this manner, the dollars received by the person who actually provides services are not based on a percentage of referrals, collections, etc. In addition, a reevaluation time term of one year is likely within the "safe harbor" of relevant law. Given potentially very serious civil and criminal consequences at the Federal level, we strongly encourage all providers to check their current contracts and be absolutely certain there is no fee splitting arrangement

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contained within them. If there is any ambiguity at all, the provider should immediately check with his or her legal counsel.

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Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC

3000 W. Dundee Road, Suite 303 Northbrook, IL 60062

847/564-8662; 847/564-8419 (Fax) Email: [email protected] Website: www.wct-law.com

NON-CUSTODIAL PARENTS:

LEGAL ISSUES Who Has The

Authority To Do What?

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NON-CUSTODIAL PARENTS By Brooke R. Whitted

I. Definitions What is custody? What is guardianship? What legal relationship does a stepparent have to a child who lives in the home? What is joint custody? All of these questions are asked on a regular basis by education professionals. The context varies: sometimes a residency question is involved. At other times, educators are attempting to unsnarl a complicated thicket of relationships just to figure out who has the authority to sign a form to release information or initiate services. The purpose of this memorandum is to inform the reader with respect to the latter quandary, using relevant statutory definitions as well as providing a tool with which to analyze whether an individual asserting that he or she has authority does, in fact, have that authority. The Illinois Probate Act defines "Guardian" as a legal representative of a minor.9 A "representative" is defined in the same act as a standby guardian, temporary guardian, and a guardian.10 These terms are defined by the Probate Act,11 as well as a comparatively new addition known as "short-term guardian,"12 which is:

§1-2.24. …. a guardian of the person of a minor as appointed

by a parent of a minor under Section 11-5.4, or a guardian of the person of a disabled person as appointed by the guardian of the disabled person under Section 11a-3.2.

The Juvenile Court Act contains perhaps the best and most comprehensive definitions:

(7) "Emancipated minor" means any minor 16 years of age or

over who has been completely or partially emancipated under the "Emancipation of Mature Minors Act", ...

9 755 ILCS 5/1-2.08. 10 755 ILCS 5/1-2.15. 11 755 ILCS 5/1-2-23, et al. 12 755 ILCS 5/1-2.24.

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(8) "Guardianship of the person" of a minor means duty and

authority to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to:

(a) the authority to consent to marriage, to enlistment in

the armed forces of the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;

(b) the authority and duty of reasonable visitation,

except to the extent that these have been limited in the best interests of the minor by court order;

(c) the rights and responsibilities of legal custody except

where legal custody has been vested in another person or agency; and

(d) the power to consent to the adoption of the minor,

but only if expressly conferred on the guardian in accordance with Section 2-29, 3-30, or 4-27.

(9) "Legal custody" means the relationship created by an order

of court in the best interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.

(10) "Minor" means a person under the age of 21 years subject

to this Act. (11) "Parent" means the father or mother of a child and

includes any adoptive parent. . . . (13) "Residual parental rights and responsibilities" means

those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minor's religious affiliation, and the responsibility for his support.13 (All emphasis is added)

13 705 ILCS 405/1-3

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It also tends to be confusing to most people when conflicting statutory definitions are encountered. For example, the term "minor" is defined above in the Juvenile Court Act as anyone under 21, yet the Child Care Act defines "child" as follows:

§ 2.01. Child. "Child" means any person under 18 years of

age. For purposes of admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987. Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individual's eligibility for such a program.14

To add to the confusion, the Parental Responsibility Act defines "minor" as a person between the ages of 11 and 19!15 The same act also defines a "Legal Guardian" as follows:

(1) "Legal guardian" means a person appointed guardian, or

given custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the "Juvenile Court Act or the Juvenile Court Act of 1987".16 (Emphasis added)

The School Code, however, defines "parent" as "a parent or legal guardian of an enrolled student of an attendance center [for cities over 500,000]."17 However, for homeless children the School Code defines "parent" as "the parent or guardian having legal or physical custody of a child." (emphasis added)18 It is well established that in most circumstances for school purposes, there must be a court order or an actual, legal, or documented connection between the "parent" and the "child." A stepparent, for example, who shows up at a staffing and asserts that he or she has authority over the child must be questioned. Unless there has been an adoption, court-ordered guardianship, or other document that gives the stepparent legal authority, there is no authority. Likewise, in the case of a non-custodial parent who appears at a staffing or in the administrator's office and asserts authority over the child. At the very least, a non-custodial parent should sign a document certifying that he or she has the authority so claimed. 14 225 ILCS 10/2.01. 15 740 ILCS 115/2(2) 16 740 ILCS 115/2(1) 17 105 ILCS 5/34-1.1 18 105 ILCS 45/1-5

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II. Introduction to the Problem The issue of what rights a so-called "non-custodial" parent has is cropping

up with increasing frequency. For example, in the case of Navin vs. Park Ridge School District #64,19 the non-custodial parent, who under the divorce decree only had a right to information and not concerning any educational decision making, requested a due process hearing demanding more services. The hearing officer dismissed the request on the basis that the father, as the requesting party, was the non-custodial parent and had no right to request a due process hearing. The District (trial) Court agreed and affirmed the decision of the hearing officer, but the Federal Appellate Court disagreed and remanded the case to the District Court for further proceedings. In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including the Appellate Court's order (to her) to readjudicate the case. She then concluded that she couldn't do anything until a hearing officer had actually made a determination of the non-custodial parent's claims of certain procedural violations. Therefore, the District Court judge who had the case remanded to her again remanded the case down to the hearing officer. The hearing officer was compelled to actually hold a hearing to examine the non-custodial father's complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court, and ultimately to the Appellate Court. Just from precedent set by this one case, then, Illinois hearing officers must consider procedural claims made by non-custodial parents even though the decree does not give them any right to determine educational programming. Our opinion is that this decision creates meaningless work in a very narrow area of non-custodial parent rights, however, now that the opinion exists, it must be followed. III. Questions to Ask in the Majority of Cases A. Source of Authority

If you are presented with potential custodial issues, you first need

to inquire as to the source of the authority claimed. Usually in domestic relations matters, there is a "decree" which includes a settlement agreement or court order that outlines the duties and responsibilities of the parties. This is always on file in a court clerk's office somewhere. If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination. The general rule of thumb here should be, "when in doubt, check the file." However, it is recognized that educators (a) don't have the responsibility to check every court file to verify the truthfulness of parents and yet (b) should have some documented basis for taking what the parent says at face value and

19 36 IDELR 235

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moving forward. In this regard, we suggest the attached document entitled "Certification of Authority." Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent. A cover letter should accompany the form, indicating to the custodial parent that if the school authorities don't hear from him or her within a week, the form will be accepted as truthful.

B. Type of Right Asserted

Non-custodial parent rights are divided into two areas: consent for services (in domestic relations, these are usually medical and educational) and consent for release of information. Generally speaking, pursuant to Illinois decisional case law in the mental health area, the non-custodial parent of a child under 12 has the right to the same flow of information as the custodial parent if he or she requests such in writing.20 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA)21, there is no such restriction on the child's age. Therefore, unless the decree states otherwise, the non-custodial parent does not have the authority to consent to the initiation or administration of medical or educational services. This is, of course, another case for checking the decree which, in addition, can usually be provided by the parent who seeks information or consent authority.

1. Confidential Information:

a. School Information: In connection with educational information as defined in the

Illinois School Student Records Act, all you need is the consent of one parent, and generally speaking that should be the parent who has custodial authority over the child. For school information only, you do not need the signature of the child at any time.

b. Mental Health Information: This is governed by the Mental Health and Developmental

Disabilities Confidentiality Act22. Different rules apply to the release of mental health information and these are very specific. The attached form contains a second section, in the same

20 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659 21 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 99 22 While mental health files also are now subject to the Health Information Portability and Accountability Act (“HIPAA”), any mental health records related to students which are maintained in the student’s permanent or temporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and are generally exempted from HIPAA regulations.

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document, for the release of mental health information only. It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or non-custodial, and the information is "mental health" in nature, the refusal of any child age 12 to 18 to sign the form is enough to block the information in the absence of a court order for disclosure. For children below the age of 12, however, both non-custodial and custodial parents have the same right to the flow of confidential mental health information.

2. Services:

The issue of consent for services is more complicated. The decisional case law generally requires that the custodial parent authorize services. Cases have shown that when the non-custodial parent attempts to initiate services, the courts have invalidated the authorization. Thus, educators should take some steps to verify the authority of the custodial parent who seeks to authorize initiation, change, or cessation of services. Quite possibly, the attached Certification of Authority would be sufficient if there is any doubt. However, in cases with serious potential consequences, there is no equal to actually checking the court file. C. Incarcerated Parents

When the parent or guardian has been incarcerated, other issues may need to be considered. Depending on the offense, it is possible that the rights of the parent may have been terminated. If such is the case, then there might be a private guardian appointed or, alternatively, the child may be a ward of the state. If the child is a ward of the state, the state guardian (DCFS usually, in Illinois) controls decision-making. If there is a private guardian, you can usually ask for the "letters of office" which should contain all of the guardian's duties, authority, and responsibilities.

It is also possible that an incarcerated parent may have retained parental rights, in which case it would be necessary to correspond with the parent, even though incarcerated, for the purpose of obtaining consents. Likewise, an incarcerated parent continues have the legal authority to consent to information disclosure unless parental rights have been fully terminated.

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WHITTED, CLEARY & TAKIFF LLC

3000 Dundee Road Suite 303

Northbrook, IL 60062 Phone: 847-564-8662

Fax: 847-564-8419 Website: www.whittedclearylaw.comm

Email: [email protected]

What Happens When a School District

Fails to Respond to the Needs of a

Suicidal Child?

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Potential Liability Risks for a School District's Failure to Act When it has Knowledge of a Suicidal Child in its

Population

By Brooke R. Whitted, Malcolm C. Rich This presentation will deal with special education liability and personal liability of school district officials when a district fails to act when it has knowledge of a suicidal child in its population. Special Education Liability A school district can be held liable when it fails to serve a student within its population when it has knowledge that a student is or has been suicidal. This was the case in the March 2002 impartial due process hearing decision in case of KJE vs. Oakwood Community Unit School District #76 (Case No. 25-553).

Facts KJE had been diagnosed since October 1999 with a number of mental illnesses. In October of 1999, the parents of KJE reported to the school principal that their daughter had informed them that she had planned to kill herself. The principal failed to request or even suggest a case study evaluation for special education services or to offer any services whatsoever to KJE. In December 1999, KJE once again threatened to kill herself and also threatened to kill her mother after becoming violent with her parents. She was subsequently hospitalized and diagnosed with major depression. On December 31, 1999, KJE attempted to commit suicide a second time. She subsequently informed the school principal that she was continuing to have suicidal feelings. Soon thereafter, she made a third suicide attempt and was admitted to an inpatient psychiatric unit. After her third psychiatric hospitalization, KJE’s parents met with the school principal and informed her of the suicidal history of their daughter. The principal offered no services to KJE and did not refer her for a case study evaluation. At age 14, KJE was eligible to attend the school district's high school, which also refused to provide appropriate special education services. The parents were forced to home school KJE while they searched for an appropriate residential placement. In November 2001, the school district conducted an IEP meeting to discuss special education eligibility and placement. Despite an overwhelming amount of evidence that KJE suffered from a severe emotional disturbance, the school district team decided that KJE was ineligible for special education services. During the session, the team's social worker presented a letter describing KJE as being a "very real risk to herself." But the team made no mention of KJE's four suicide attempts, history of

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psychotic behavior, or socialization problems, but instead stressed that she had received passing grades in 7th and 8th grade. In determining that KJE was not eligible for special education services, the meeting notes stated that it was not possible to determine an adverse effect on educational performance since KJE was not attending classes full-time at a regular education high school setting. The parents filed for a due process hearing and moved KJE to a residential facility.

Issues 1. The school district, as its defense, claimed that KJE was not "seriously

emotionally disturbed" and she was therefore not entitled to special education services.

2. The school district also claimed that KJE was not entitled to special education

services because she was not failing her courses and was progressing from year to year.

3. The district further claimed that it was not required to provide a case study evaluation because the parents failed to request it.

Analysis

The School District Had Adequate Knowledge To Establish That KJE Was Seriously

Emotionally Disturbed The basic tenets of IDEA are that all applicable laws and regulations require a school district to demonstrate that it properly identifies the nature and severity of a student's suspected disability and offers the student a free appropriate public education in the least restrictive environment. In so doing, a district must act consistently with procedural safeguards. Part of these safeguards is that a school district has an affirmative duty to actively seek out and identify children in need of special education services. The hearing officer in the KJE case emphasized the fact that the school was aware of KJE's suicide attempts, psychiatric hospitalizations, and telephone conversations that were made between the parents and the middle school principal and the school district's social worker. According to Federal Regulations (34 C.F.R. Sec. 300.7(a)), in order to be identified as an emotionally disturbed student, a child must be determined to have a condition exhibiting one or more of the following characteristics over a long period of time. A student must demonstrate:

§ Inability to learn which cannot be explained by intellectual, sensory, or health factors; or

§ An inability to build or maintain satisfactory interpersonal relationships with peers; or

§ Inappropriate types of behavior or feelings under normal circumstances; or § A general pervasive mood of anxiety, unhappiness, or depression; or

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§ A tendency to develop physical symptoms or fears associated with personal or school problems.

§ The hearing officer, in determining that the student met the requirements of the

definition of severely emotionally disturbed, stated: "Had the local school district properly investigated the student's academic performance, it is clear to the hearing officer that an investigation would have led to the conclusion that the student met the requirements." The hearing officer rejected the school district's notion that because KJE was not failing academically, she did not meet the emotional disturbance criteria.

In Township High School District #211, 24 IDELR 1059 (June 3, 1996), parents of a high school student unilaterally placed their child in a residential placement and sought reimbursement from the district. The district refused to pay because she was not "emotionally disturbed," according to their test results. A hearing officer found, however, that there was overwhelming evidence that she was either unhappy or depressed over a considerable length time, and that her emotional state affected her academic performance.

In KJE's case, it was clear that she had been seriously depressed, and that this

depression had affected her behavior -- KJE had attempted suicide on four separate occasions. Furthermore, it was clear that this depression had affected her scholastic performance. She was not failing her academic courses only because she possessed higher cognitive ability, however not how our regulations define a "educational performance":

Educational Performance: A student's academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment (emphasis added, 23 IAC 226.75).

The hearing officer rejected the notion that the school could ignore its knowledge

of KJE’s suicidal tendencies and other serious emotional difficulties simply because she was not failing her academic courses, as this conveyed a profound ignorance of the regulatory definition..

There is No Requirement That a Student Must Be Failing Academically Before

He or She is Entitled to Special Education Services In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982), the

U.S. Supreme Court noted that Amy Rowley was a deaf student who performed "better than the average child in her class and is advancing easily from grade to grade." 73 L.Ed. 2nd at 699. In fact, Amy was receiving A's and B's in her classes but under the IDEA, the school district nevertheless found her eligible for special education services. The Supreme Court ruled that while the education system does not have to maximize the potential of each handicapped child, the school system's commitment to children with disabilities requires that these children must have access to specialized education and

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related services. And, these services must be individually designed to provide significant educational benefits to each handicapped child.

A child cannot be excluded from special education services just because he or she

is not failing academically. The Supreme Court stated: "We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a free appropriate public education. 73 L.Ed. 2nd at 1710.

Hearing officers and judges have concurred in cases throughout the country. In

Cornwall Central School District Board of Education, 17 E.H.L.R. 10239 (June 6, 1991), the parent of a 14-year-old child appealed a decision that their child was not seriously emotionally disturbed. The review officer held that the child's emotional difficulties had, in fact, impacted significantly on his educational performance even though the child had not failed any courses. The child also experienced physical symptoms at school. The hearing officer determined that the child met the criteria for SED, but due to the fact that no observations had been done in the classroom, the final decision on his eligibility would have to wait until observations were complete.

In Manhattan Beach Unified School District, 34 IDELR 249 (March 14, 2001), an

administrative hearing officer ruled that the parents of a 16 year old with serious emotional difficulties who was unilaterally placed in a private facility were entitled to reimbursement by the school district. In this case, as in the case of KJE, the student had never been found eligible for special education. At the time of the hearing she was living in a therapeutic boarding school. When the student was in eighth grade she began exhibiting disturbing behaviors that were in many ways similar to those exhibited by KJE. She, like KJE, was hospitalized in a psychiatric facility and had made a suicide attempt. The school district in Manhattan Beach found that the student did not meet the eligibility criteria for special education in part because in the district's view, she was doing well academically.

The hearing officer in Manhattan Beach disagreed with the school district, finding

that the student was seriously emotionally disturbed in light of the fact that she demonstrated a general pervasive mood of unhappiness and depression; exhibited characteristics of emotional disturbance for over 6 months; exhibited these characteristics in home, school and therapy environments; and was not achieving "mastery" in her classes -- her class work was sufficiently affected by her disability. The hearing officer concluded that because the school district did not find the student eligible for special education, it did not provide a free appropriate public education and ordered the school district to reimburse the parents for their unilateral private residential placement.

Two other cases establish the principle that a student need not be failing

academically before he or she is entitled to special education services: 1) In Yankton School District vs. Schramm, 93 F. 3rd 1369, 24 IDELR 704 (8th

Cir. 1996), a child with Cerebral Palsy who was achieving high marks in school still

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qualified as a child in need of special education under IDEA, when the child continued to need specially designed instruction and related services;

2) In Schoenfield v. Parkway School District, 138 F. 3rd 379, IDELR 845 (8th Cir.

1998), a court found that academic performance at or above age level does not necessarily mean a child is not disabled or that the education satisfies the standard of appropriateness.

A School District Must Provide a Case Study Evaluation Even If Parents Do Not

Request It The hearing officer in KJE rejected the notion set forth by the district that the they

were required to provide a case study evaluation "because the parents did not request one." The hearing officer found that by failing to investigate KJE's special needs, the school district “failed to comply with the most elementary requirements of “child find” as outlined in the Illinois Administrative Code. Under the "Child Find" provision, each school district is responsible for actively seeking out and identifying all children from birth through age 21 within the district who may be eligible for special education and related services. The hearing officer therefore ordered the school district to pay for private residential placement.

In general, the KJE case shows that knowledge by a school district of a student’s

suicidal ideation and other serious emotional difficulties is enough to require a case study evaluation. Moreover, a school district will be found liable should it choose to ignore these therapeutic problems simply because a child is progressing from grade to grade. Personal Liability of School Officials There are two relatively recent cases which establish that it is possible to assign personal liability to selected school officials when serious behavioral difficulties are known to the school district, but are ignored. In November 2000, the Superior Court in Connecticut awarded more than $67,000.00 to a special education student who was attacked by another special education student, based on the evidence that the assistant principal had reason to know of the potential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33 IDELR 270 (Conn. Superior Ct). In this case, a special education student suffered from frequent harassment and bullying from another student. The student told his parents about the harassment, and they told him to inform school officials. The student told the assistant principal of the other student's actions, which included racial epithets, spitting, and pushing. The assistant principal stated that would take care of the matter, but she took no action. She did not inform other school officials and she left the premises for the day shortly after meeting with the student. Later that day, the student was attacked by the other student in the cafeteria. The student victim's head hit the floor, knocking out his two front teeth and breaking his jaw on both sides.

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The court found that because the assistant principal was informed of the previous attacks, she had an affirmative duty to take action to prevent further attacks. The court noted that "the evidence unambiguously establishes that she did nothing." Given the nature of the inaction, the assistant principal was not shielded by the doctrine of governmental immunity. She knew of "likely imminent harm to an identifiable person," and was therefore liable for negligence. In a Federal District Court action, a judge has ruled that a Santa Barbara high school district administrator was personally liable for damages under Section 1983 of the Federal Civil Rights Act for violating a mother's right to obtain a free appropriate public education for her special needs son, as required by IDEA. Goleta Union Elementary School District vs. Andrew Ordway, CD 99 – 07745 (CD CAL, verdict December 5, 2002). The mother of the special needs student alleged that the director of student services for the Santa Barbara High School District placed her son in a new school without investigating whether the new school met the student's special education needs. The school official had moved for summary judgment, maintaining that she could not be held personally liable under Section 1983 for a violation of IDEA, because "mere negligence on the part of a government official is insufficient to support such a claim." The court held that a showing of heightened culpability is not required to establish a violation of IDEA -- "…all that is required to establish a Section 1983 claim is proof of a violation of IDEA under color of law." The court determined that the official denied the student a free appropriate public education by failing to offer him an appropriate placement. This official's conduct constituted a violation of IDEA. A trial on the parent's request for damages has been scheduled. Conclusion Once a determination is made that a school district violated IDEA by not acting upon knowledge that it had in relation to special needs of a student – such as suicide attempts or suicidal ideation -- there is school liability and, in certain instances, personal liability of school education personnel for damages resulting from the misconduct.

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Brooke R. Whitted Lara A. Cleary

WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road, Suite 303

Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661

www.whittedclearylaw.com [email protected]

THE FINAL WORD ON SCHOOL

HEALTH SERVICES:

THE U.S. SUPREME COURT DECISION IN

CEDAR RAPIDS

CSD v. GARRET F.

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THE FINAL WORD ON SCHOOL HEALTH SERVICES:

CEDAR RAPIDS CSD v. GARRET F. by

Brooke R. Whitted I. Facts and Case History When he was four years old, Garret’s spinal column was severed in a motorcycle accident. There was no adverse effect on his mental capacities. He is ventilator dependent and needs someone nearby at all times. In 1993, mother requested the school district to be financially liable for one-to-one school nursing services while Garret was at school. The school district denied this and thought at that time they were not responsible for services they felt were “medical.” Garret was the only ventilator dependent pupil in this district of 17,500 students. Mother requested a hearing and during the proceedings, the school district admitted the services were capable of being provided by a non-physician. The administrative hearing officer held that the school district had to provide the services, for this reason, according to the Tatro case. The school district then appealed the hearing officer’s administrative decision in federal court, and the court upheld the hearing officer’s ruling, granting the parent’s motion for summary judgment. The Court of Appeals affirmed, using the Tatro “bright line” test, since it was undisputed that Garret could not attend school if the services were not provided. II. The Supreme Court Opinion A. District’s Position In its petition, the school district asked the Supreme Court to overrule the appellate court in favor of a ”multi factored” test, not a “bright line” test. The Supreme Court held in favor of the Appellate Court because, they said, the text of the related services definition is very clear, and here, the district did not challenge the idea that Garret needed the services requested. The court further commented in a footnote that they see no reason to either revise Tatro or rewrite the U.S. Department of Education’s regulations, which favor the test used by the Appellate Court. The court therefore held that the in school services, while more extensive and expensive, must be provided, and further that Garret’s needs were no more “medical” then those needed by Amber Tatro in her case. [1999 WL 104410*4.]

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1. “Continuous” and “Complex” (Translation: Expensive) The school district used an argument that the services were required in a complex form and they were necessarily “continuous.” Yet the court said unequivocally that “the district’s multi factor test is not supported by any recognized source of legal authority.” Just because “continuous” services may be more costly and require more personnel does not make them any more “medical” under Tatro. [Footnote 8 at 1999 WL104410*5.] 2. Limitations of “Existing” Staff The court further stated that the “district cannot limit educational access simply by pointing to the limitations of existing staff. The district must hire specially trained personnel as required by law.” As to this problem of existing school staff being unable to meet all of their responsibilities and provide for Garret too, the concept was dismissed out of hand. As in Honig, the U.S. Supreme Court declined to read into the law a definition that was not present. The court was remarkably consistent here. Note also footnote 9 (at 1999 WL104410*5) which mentions that Garret had a teaching assistant who also was a qualified LPN. In Iowa, the State Board of Nursing has held that RN’s can delegate responsibilities to LPNs. The court further held that school districts cannot use cost itself in the definition of related of related services. This would be “judicial law making without any guidance from Congress.” Citing Rowley, as courts always do, the court further required that districts must “open the door” of opportunity to all qualified children. There is no “onerousness” exception. III. Summary The analysis in this case is just as simple as that found in the Tatro case: is meaningful access to the public schools assured? This is not about the “level of education that a school must finance once access is attained.” To be specific, the services at issue were as follows:

1. Ventilator checks; 2. Ambubag (manual breathing assistance) when

ventilator is being maintained and as needed; 3. Urinary bladder catheterization; 4. Suctioning of tracheotomy tube as needed; 5. Getting Garret into a reclining position five minutes

during every hour; and

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6. Assistance from someone who is familiar with emergency procedures, in other words, at least an LPN.

The court held that regardless of how expensive or complex (the dissent points out that the services will cost the school district $18,000 per year), the services must be provided if Garret is to remain in school. It was held that the district is required to provide these services and further, that the Neely and Detsel cases (appellate cases favoring the approach of the district) have now been abrogated. IV. Conclusion The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a related service is required to enable a qualified disabled pupil to remain in school, it must be provided as long as it is not a purely “medical” service. And “medical” is provider controlled, that is, if the service can only be provided by a licensed physician, it is an exempt “medical” service unless it is needed for diagnostic or evaluative purposes. If, however, the service is capable of being delivered by a non-physician, it must be provided by school districts regardless of any financial or staffing burdens the act of providing the services might impose. The Supreme Court has again - and quite predictably in light of the Honig case on expulsion - read the Act for its plain, simple meaning and has again declined to “read in” exceptions that are not present.

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BROOKE R. WHITTED LARA A. CLEARY

WHITTED, CLEARY & TAKIFF, LLC 3000 Dundee Road

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax

www.wct-law.com [email protected]

SCHOOL STUDENT RECORDS ACT

COLLECTION, MAINTENANCE,

INSPECTION, AND DISSEMINATION OF

STUDENT EDUCATIONAL RECORDS FOR REGULAR

AND SPECIAL EDUCATION STUDENTS

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COLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL

RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS CAVEAT: A school student records policy must comply with the Family Educational Rights and Privacy Act of 1974 , the Illinois Student Records Act, and all regulations issued pursuant to such Acts and the rules of the Illinois State Board of Education. This document is an overview of the required contents of a school student records policy and compliance with the requirements stated herein may not satisfy all applicable laws. Therefore, it is advised that a school district consult an attorney before adopting a given student records policy. I. NOTIFICATION Upon initial enrollment or transfer of a student to the school, the school shall notify the student and the student's parents of their rights under the Illinois School Student Records Act, the Regulations thereto and the policies stated herein. II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for the maintenance, care and security of all school student records, whether or not such student records are in his personal custody or control. The official records custodian shall take all reasonable measures to prevent unauthorized access to or dissemination of school student records. III. MAINTENANCE OF PERMANENT AND TEMPORARY RECORDS A. Information contained in or added to a school student record shall be limited to information which is of clear relevance to the education of the student. Information added to a school student record shall include the name, signature and position of the person who has added such information and date of its entry into the record. B. Each school shall maintain student permanent records and the information contained therein for not less than 60 years after the student has transferred, graduated or otherwise permanently withdrawn from school. C. No school shall maintain any student temporary record or the information contained therein beyond its period of usefulness to the student and the school, and in no case longer than 5 years after the student has transferred, graduated or otherwise permanently withdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitely anonymous information from student temporary records for authorized research, statistical reporting or planning purposes, provided that no student or parent can be individually identified from the information maintained.

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D. The principal of each school or the person with like responsibilities or his or her designate shall periodically review each student temporary record for verification of entries and elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information. Student records shall be reviewed every four years or upon a student's change in attendance centers, whichever occurs first, to verify entries and to eliminate or correct all out-of-date, misleading, inaccurate, unnecessary or irrelevant information. E. Upon graduation, transfer or permanent of a handicapped student as defined in the School Code and 23 111. Adm. Code § 226, Subpart A (Special Education), psychological evaluations, special education files and other information contained in the student temporary record which may be of continued assistance to the student may, after five years, be transferred to the custody of the parent or to the student if the student has succeeded to the rights of the parents. The school shall explain to the student and the parent the future usefulness of these records. F. Before any school record is destroyed or information deleted therefrom, the parent shall be given reasonable prior notice in accordance with regulations adopted by the State Board and an opportunity to copy the record and the information proposed to be destroyed or deleted.

IV. RIGHT TO INSPECT RECORDS A. A parent or any person specifically designated as a representative by a parent shall have the right to inspect and copy all school student permanent and temporary records of that parent's child. A student shall have the right to inspect and copy his or her school student permanent record. B. Whenever access to any person is granted, at the option of either the parent or the school, a qualified professional, who may be a psychologist, counselor or other advisor, and who may be an employee of the school or employed by the parent, may be present to interpret information contained in the student temporary record. C. A parent's or student's request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and in no case later than 15 school days after the date of receipt of such request by the official records custodian. D. The school may charge its reasonable costs for the copying of school student records, not to exceed $.35 per page.

V. DISCLOSURE OF RECORDS

A. No school student records or information contained therein may be released, transferred, disclosed or otherwise disseminated, except as follows:

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(1) To a parent or student or person specifically designated as a representative

by a parent; (2) To an employee or official of the school or school district or State Board

with current demonstrable educational or administrative interest in the student in furtherance of such interest;

(3) To the official records custodian of another school within Illinois or an

official with similar responsibilities of a school outside Illinois, in which the student has enrolled, or intends to enroll, upon the request of such official or student;

(4) To any person for the purpose of research, statistical reporting or planning,

provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records;

(5) Pursuant to court order, provided that the parent shall be given prompt

written notice upon receipt of such order of the terms of the order, the nature and substance of the information proposed to be released in compliance with such order and an opportunity to inspect and copy the school student record and to challenge their contents pursuant to the procedures set forth in 105 ILCS 10/7;

(6) To any person as specifically required by State or federal law; (7) Subject to regulations of the State Board and to 23 Ill.Adm.Code §375.60

(1996), in connection with an emergency, to appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons; or

(8) To any person, with prior specific dated written consent of the parent

designating the person to whom the records may be released, provided that at the time any such consent is requested or obtained, the parent shall be advised in writing that he has the right to inspect or copy such records in accordance with 105 ILCS 1015, to challenge their contents in accordance with the procedures set forth at 105 ILCS 10/7, and to limit any such consent to designated records or designated portions of the information contained therein.

VI. RELEASE OF RECORDS A. No information may be released pursuant to paragraphs (3) or (6) unless the parent receives prior written notice of the nature and substance of the information

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proposed to be released, and an opportunity to inspect and copy such records in accordance with 105 ILCS 10/5 and to challenge their contents in accordance with 105 ILCS 10/7. B. A record of any release of information pursuant to this Section must be made and kept as a part of the school student record and subject to the access granted herein. A record of any release of information must be made and kept as a part of the school student record and subject to the access granted by 105 ILCS 101/5. Such record of release shall be maintained for the life of the school student records and shall be available only to the parent and the official records custodian. Each record of release shall also include: (1) The nature and substance of the information released; (2) The name and signature of the official records custodian releasing such

information; (3) The name of the person requesting such information, the capacity in which

such a request has been made, and the purpose of such request; (4) The date of the release; and (5) A copy of any consent to such release. C. The school shall grant access to, or release information from, school student records without parental consent or notification: (1) To an employee or official of the school or school district or the state

board of education, provided such employee or official has a current demonstrable educational or administrative interest in the student and the records are in furtherance of such interest;

(2) To any person for the purpose of research, statistical reporting, or

planning, provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records.

VII. PROCEDURE FOR CHALLENGE TO RECORDS A. Parents shall have the right to challenge the accuracy, relevance or

propriety of any entry in the school student records, exclusive of (I)academic grades of their child and (ii) references to expulsions or out-of-school suspensions, if the challenge is made at the time the student's school student records are forwarded to another school to

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which the student is transferring. Parents shall be notified of their right to a hearing challenging entries made in the school student records.

B. The request for a hearing shall be submitted in writing to the school and

shall contain notice of the specific entry or entries to be challenged and the basis for the challenge.

C. Each school shall establish administrative procedures for parents to

challenge the contents of student records. Such procedures shall include:

(1) An initial informal conference with the parents, within 15 school days of receipt of the request for a hearing.

(2) If the challenge is not resolved by the informal conference, formal

procedures shall be initiated. a) A hearing officer, who shall not be employed in the attendance

center in which the student is enrolled, shall be appointed by the school.

b) The hearing officer shall conduct a hearing within a reasonable

time, but no later than 15 days after the informal conference, unless an extension of time is agreed upon by the parents and school officials. The hearing officer shall notify parents and school officials of the time and place of the hearing.

D. The challenging procedures shall provide for a hearing at which each party shall have:

(1) The right to present evidence and to call witnesses;

(2) The right to cross-examine witnesses;

(3) The right to counsel;

(4) The right to a written statement of any decision and the reasons therefor;

(5) The right to appeal an adverse decision to an administrative tribunal or official to be established or designated by the State Board;

E. A verbatim record of the hearing shall be made by a tape recorder or a court reporter. A typewritten transcript may be prepared by either party in the event of an appeal of the hearing officer’s decision. However, a typewritten transcript is not required in an appeal.

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F. The written decision of the hearing officer shall, no later than 10 school days after the conclusion of the hearing, be transmitted to the parents and the school district. It shall be based solely on the information presented at the hearing and shall be one of the following:

(1) To retain the challenged contents of the student record;

(2) To remove the challenged contents of the student record; or

(3) To change, clarify or add to the challenged contents of the student record. G. Any party shall have the right to appeal the decision of the local hearing officer to the Regional Superintendent within 20 school days after such decision is transmitted. If the parent appeals, the parent shall so inform the school and within 10 school days the school shall forward a transcript of the hearing, a copy of the record entry in question and any other pertinent materials to the Regional Superintendent. The school may initiate an appeal by the same procedures. Upon receipt of such documents, the Regional Superintendent shall examine the documents and record to determine whether the school district’s proposed action in regard to the student’s record is in compliance with applicable law, make findings and issue a written decision to the parents within 20 school days of the receipt of the appeal documents. If the subject of the appeal involves accuracy, relevancy or propriety of any entry in special education records, the Regional Superintendent should seek advice from special education personnel. H. A final decision under the procedures established pursuant to 105 ILCS 10/7 may be appealed to the Circuit Court of the County in which the school is located. I. Parents shall also have the right to insert in their child's school student record a statement of reasonable length setting forth their position on any disputed information contained in that record. The school shall include a copy of such statement in any subsequent dissemination of the information in dispute.