New Hampshire Code of Administrative Rules
Psyc - Board of Psychologists
Chapter Psyc 200 - PRACTICE AND PROCEDURE
Part Psyc 204 - INVESTIGATIONS
Section Psyc 204.04 - Handling of Psychological Records
Universal Citation: NH Admin Rules Psyc 204.04
Current through Register No. 12, March 21, 2024
(a) Pursuant to RSA 329-B:22, VI, if it determines that just cause exists to do so, the board shall subpoena psychological records from its licensees, hospitals, or other health care providers licensed in New Hampshire.
(b) In the event that the client or patient owning the privilege of psychology records sought by the board is the person who has made the allegations against the licensee, the board shall have access to such records.
(c) In the event that the client or patient named in the complaint is a child, the legitimate assertion of the privilege by one natural parent or adoptive parent or legal guardian is sufficient for this paragraph to apply. The board may act on that parent or guardian's initiation of a complaint regardless of the objection of the other parent or guardian.
(d) In the event that the person alleging misconduct against the licensee is not the owner of the privilege for the records of the client or patient named in the complaint, the records for an investigation shall be treated as follows:
(1) When the board reviews the initial
allegations and upon all further reviews of the case by the board, the identity
of the named client/patient shall be redacted from the documents reviewed by
the board;
(2) Upon issuance by the
board of an order of investigation, but prior to the assignment of the case to
a member of the professional investigation team, the name of the client or
patient shall be provided to the immediate investigative team in order to
determine the need for recusal of those members before accepting assignment as
described in paragraph (h);
(3) The
record of the client or patient under this paragraph that has been specifically
named in the complaint shall be obtained by the professional investigative team
as follows:
a. The board may order its
administrator or investigator to request permission from the client or patient
to obtain the record for the investigation, informing the client or patient
about the bounds of confidentiality of such records and the nature of the
investigation process. If the client or patient grants permission, the board
may obtain the copies of the record from the licensee;
b. If the client/patient denies permission
for access to the record, or if the board chooses to omit the request for
permission, the procedures of subparagraphs (e)(4), (5), (6), and (8) shall
apply to the handling of those records and requests for interviews;
(4) Personally identifiable
information pertaining to the client or patient under this subparagraph shall
remain known only to the immediate investigation team assigned to the case,
including, but not limited to, the board investigator, any administrative
prosecution unit attorney assigned to the case, a professional conduct
investigator, the board administrator;
(5) All communication beyond the immediate
investigation team pertaining the client or patient named in the complaint
shall be conducted without the use of personally identifying
information;
(6) The name of the
client or patient under this subparagraph shall not be disclosed to the public
in any manner or in any proceeding of the board without his or her
consent.
(e) Records of client/patients who are not named in the initial allegations shall be treated as follows:
(1) If the investigation team
wishes to obtain records of, or contact, clients/patients not named in the
original order of investigation, the investigation team shall make its request
to the board with reasons for the request, shall specify the scope of cases and
types of records requested, and shall state the name of the individual
authorized to contact any client/patient;
(2) Upon issuance of an order of
investigation by the board pertaining to treatment of patients defined in this
subparagraph, the names of the clients/patients that fulfill the criteria of
selection may be made available to the immediate investigation team for
purposes of determining whether recusal issues pertain to their selection for
the investigation as described in subparagraph (g);
(3) If the board orders investigation into
client/patient cases who are not named in the original allegations, it shall
specify whether these clients/patients may be contacted directly by the
investigation team;
(4) For records
requested under this subparagraph, a licensee shall be instructed to provide
records that are redacted of personally identifiable information. Each record
shall be marked with an identifying code and the licensee shall provide to the
board administrator the contact information for corresponding clients/patients
as specified in paragraph (g);
(5)
The board administrator shall separately store in a secure manner the list of
these client/patient codes with corresponding contact information;
(6) In the event the investigation team has
just cause to verify its redacted copies against originals of the records of
specified cases, it shall request permission of the board giving reason for its
request. If the board grants permission, the investigation team may have access
to the identified records. Originals of the records may be viewed at a time and
location determined by the investigation team. The investigation team may
request a copy of the identified original records be sent to the immediate
investigation team. The investigation team may then proceed to review the
original or copies of the identified records in comparison with the redacted
copies to ascertain their completeness and accuracy. Copies and corrections to
the redacted records may be made by the investigation team, after which any
identified copies in the possession of the investigation team shall be
destroyed and original records returned to the licensee;
(7) When permission has been granted by the
board pursuant to subparagraph (e)(1) to contact clients/patients pertaining to
this subparagraph, access to the contact information is limited to the
professional conduct investigators and administrative prosecution unit
attorneys assigned to the case, the administrative clerk who manages the
confidential files of the case, and any assistants specifically approved by the
board for contact;
(8) The member
of the immediate investigation team making contact with clients/patients
pursuant to subparagraph (e)(1), shall request permission from the
clients/patients to conduct an interview and shall include an explanation that
they may grant or refuse permission for such interview and that there are no
adverse personal consequences of any kind for refusal to grant permission or
for withdrawing permission at any time in the process. The investigation team
member may inform the clients/patients that refusal to participate may prevent
the investigation to proceed or reach a conclusion. The investigation team
member shall predicate continuation of the interview on the client/patient's
agreement to a confidentiality agreement concerning the licensee and the
existence of the investigation;
(9)
At the conclusion of the investigation and prior to review of the report of
investigation, the identity of the client/patient under this paragraph shall be
disclosed to members of the board to determine the need for recusal of its
members as described in subparagraph (g);
(10) The identity of each client/patient
shall be redacted by the administrator or investigation team from any documents
reviewed by the board;
(11) The
identity of a client/patient defined in this subparagraph shall not be
disclosed to the public in any manner or in any proceeding of the board without
his or her consent;
(f) The mental health records obtained through subparagraphs (a), (b), and (c) shall, if archived, be treated as follows:
(1) At or before the conclusion of the
licensee investigation case, including all disciplinary action and completion,
remediation and sanctions ordered and completed, and completion of all appeals,
and appeal periods, the client/patient records shall be reduced to those
clients/patients and sections of records that had been included in the
prosecution, defense, deliberation, and determination of the case.
Client/patient materials not pertinent to the above shall be
destroyed;
(2) Materials retained
in subparagraph (d)(1) pertaining to clients/patients other than the
complainant shall be redacted of all personally identifiable information;
and
(3) The identification and
contact information collected during the investigation for clients/patients
other than the complainant shall be destroyed prior to archiving.
(g) The archived mental health records shall be destroyed according to the attorney general's archive destruction schedule.
(h) In the process of determining recusal, the security of the client/patient's identity shall be preserved, as follows:
(1) Before
engaging in any cases as defined in subparagraph (d), board members,
investigators, and others as specified in this paragraph with access to case
files shall first review the name of the client/patient before proceeding with
the case. If a conflict of interest is revealed, that person shall recuse
himself or herself from the case.
(2) Before engaging in any cases defined in
subparagraph (e), the immediate investigation team members at the onset of
investigation, board members at the time of reviewing the findings of the
formal investigation, and any others authorized in this paragraph to have
access to the case prior to commencing review of such cases shall first
determine if there is a need for recusal. The name and town of the
client/patient shall be embedded in a list of at least 12 other names and towns
prepared by the board administrator. The list shall be reviewed by the team
member in the presence of the board administrator. Telephonic review is
permitted. The member shall not retain a written record of the list. The member
shall indicate which if any names would present reasons for recusal for that
member. If the names indicated by the member do not include the client/patient
as known to the administrator, then the member shall be permitted to
participate in the case.
(3) If a
client/patient as defined in subparagraphs (d) or (e) testifies or intends to
attend the hearing of the case involving his or her treatment, in which the
board may see the client/patient inadvertently or directly, the
client/patient's name shall be revealed to the board members so that they may
have the opportunity to recuse themselves prior to the proceeding, and the
client/patient shall be informed beforehand of such disclosure.
(4) For recusal issues pertaining to
clients/patients selected under paragraph (e) of this section, the
investigation team shall review the names of the clients/patients who qualify
for the scope of investigation as defined in the order by the board, after
which team members shall determine if recusal issues occur. The names and towns
of the selected clients/patients shall be embedded in a list containing at
least 25 percent other names and towns prepared by the board administrator. The
list shall be reviewed by the team member in the presence of the board
administrator. Telephonic review is permitted. The member shall not retain a
written record of the list. Each member shall indicate which if any names would
present reasons for recusal for that member. If the names indicated by the
member do not include the clients/patients as known to the administrator, then
the member shall be permitted to participate in the case. If a case presents a
recusal issue, then the investigation team shall either disqualify
clients/patients from the list or shall disqualify the team member from
handling those cases, as the expeditious handing of the investigation and the
interests of justice require.
(5)
When board members review the reports of investigations that include case
information pertaining to clients/patients as defined in subparagraph (e), they
shall review their names prior to reading such reports in the following manner:
a. If there are 10 or fewer cases with
individual clinical information presented, then the methods of testing for
recusal shall follow the recusal procedures of subparagraph (g)(2).
b. When the report includes clinical
information pertaining to more than ten cases, then the recusal methods of
subparagraph (g)(4) shall apply.
c.
When such clients'/patients' information is presented only in aggregate form,
no recusal is required.
(i) Testimony by clients/patients shall be handled with utmost regard for their privacy and protection of their identity from public disclosure.
(1) A client/patient
as defined under subparagraphs (d) or (e) shall not be compelled to testify at
a board hearing.
(2) If a
client/patient as defined in subparagraphs (d) or (e) testifies at a hearing,
his or her identity shall be screened from the public view and knowledge,
although the respondent and attorneys shall be within the view of the
client/patient. The board may view the client/patient. The public's access to
the view or information that would identify the client/patient shall be
restricted. At the board's discretion, the hearing may be closed to the public
for the duration of the client/patient's testimony.
(3) If a client/patient who is party to the
complaint requests such privacy safeguards as in subparagraph (i)(2), the
accommodations of that subparagraph may likewise be made at the discretion of
the board.
(j) Licensees shall comply with board requests for client/patient records and all redaction requirements specified under this section. Failure to comply with lawful requests of the board under this section may subject the licensee to discipline as the board may determine.
(k) For purposes of this section, "personally identifiable information" means information which identifies an individual or which a reasonable person would believe can be used to identify an individual, which includes common and uncommon identifiers, including but not limited to name, address, birth date, social security number, court docket number, insurance policy number, and any other identifiers of an individual and of the individual's known relatives, household members, and employers that a reasonable person would believe could identify the individual to whom the record pertains.
(l) For purposes of this section, "record" means health information collected from or about an individual that:
(1) Is created or received by a health care
provider, health plan, employer, or health care clearinghouse; and
(2) Relates to the individual, the past,
present, or future physical or mental health or condition of an individual, the
provision of health care to an individual, or the past, present, or future
payment for the provision of health care to an individual.
Disclaimer: These regulations may not be the most recent version. New Hampshire may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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