Legal and Ethical Responsibilities in Pennsylvania

Both the APA Ethics Code and Pennsylvania state regulations require psychologists to plan for unexpected interruptions to practice:

• APA Ethics Code (Standard 3.12): Psychologists must "make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as illness, death, unavailability, relocation, or retirement."
• Pennsylvania Code § 41.57.Recording(d): Requires licensed psychologists to retain records for a minimum of 5 years after the last date of service for adults, and for 5 years after a minor patient turns 18.
• Pennsylvania Code § 41.57.Professional records(e): A psychologist shall provide for the confidential disposition of records in the event of the psychologist's withdrawal from practice, incapacity or death.
• HIPAA and Pennsylvania's Mental Health Procedures Act further emphasizes the importance of safeguarding patient confidentiality and ensuring appropriate access to records.
• The executor of an estate or designated practice representative may have the legal obligation to maintain access to records and respond to client requests after a psychologist's death or incapacitation.

To comply with these responsibilities, psychologists must:

• Appoint someone who can promptly access and manage both physical and electronic records
• Retain records for the required period
• Maintain confidentiality and HIPAA compliance
• Fulfill ethical and legal duties regarding client notification and transitions of care

Without written instructions (e.g., in a Professional Will), an executor may be unable to fulfill these duties, creating risks for clients, families, and the estate.

A Professional Will is a formal document that outlines how a psychologist's practice should be handled in the event of death or incapacity. It typically includes:

• Practice Executor: The person responsible for closing or managing the practice
• Patient Notification: Outlines how clients will be notified and referred
• Continuity of Care: Lists referral resources and steps to support care transitions
• Record Access: Provides passwords, encryption keys, and storage details
• Closure Logistics: Includes instructions for handling billing, insurance, office leases, and licensing bodies

Unfortunately, many Professional Wills are overly vague. Without concrete details like login credentials and notification templates, even a well-meaning executor may be unable to carry out key duties.

Pennsylvania psychologists (active and retiring) should name a Practice Executor, in order to:

• Ensure record retention and patient notification obligations are met.
• Prevent confusion or inaction among family members or staff.
• Protect clients by facilitating timely transitions and avoiding lapses in care.

If no such designation is made, it may fall to family members or the estate executor - who often lack the clinical or legal knowledge to fulfill these reponsibilities.

A designated Practice Executor should be prepared to:

• Secure and Catalog Records: Maintain HIPAA compliance and follow § 41.57 record retention timelines.
• Retain Records: For at least 5 years from last contact for adults; for minors, until the patient is 18 plus 5 additional years.
• Notify Clients: Issue appropriate client notifications (via e-mail, phone, or mail), and provide information on how to access records or obtain referrals.
• Assist in Continuity of Care: Facilitate care transitions and respond to incoming requests.
• Document All Actions - Keep detailed records of all communications and disclosures.

Retirement does not eliminate a psychologist's legal and ethical responsibilities. In fact, retiring clinicians must:

• Retain Client Records: In accordance with Pennsylvania Code § 41.57:
  • Adults: Retain records for 5 years post-termination
  • Minors: Retain records until the client is at least 18 and 5 years have passed since last contact
• Ensure Secure Storage: Whether storing paper or electronic records, secure storage must comply with HIPAA standards.
• Inform Clients: Notify current and former clients of retirement and provide instructions on how to obtain records or referrals.
• Name a Records Custodian: If the retiring psychologists will not be available to manage record requests for the full duration of the retention period, they must designate someone who can serve as a custodian and respond to patient inquiries.
• Document Procedures: Maintain clear written documentation describing where records are stored, who is responsible to inquiries, and how records will be disposed of after retention period ends.

Retiring without making these arrangements can leave former clients without access to vital documentation, place the psychologist at legal risk, and potentially violate ethical duties of care and confidentiality.

Online Templates
Pros: Low cost and accessible
Cons: Often omit critical elements, are not tailored to clinical or legal realities, and may not comply with Pennsylvania record-handling or notification rules.

Using an Attorney
Pros: Legal precision tailored to Pennsylvania law; provides credibility in legal procedings.
Cons: Attorneys may lack clinical expertise. Hourly rates are high ($300-$600/hour), and total costs may reach thousands. Legal documents may still omit essential details like access credentials or care transition procedures.

Naming a Colleague as Executor
Pros: No yearly costs; familiarity with clinical issues.
Cons: Colleague may be emotionally impacted by the psychologist's death; few clinicians have the time or training to execute all tasks (which may require 40-80+ hours); if paid, fees may reach $10,000-$20,000+; delays or mistakes can result in patient harm or legal exposure.

Professional Planning Model
Expert Collaboration: Combines legal, clinical, and administrative expertise.
Professional Executor: Ready, impartial, and experienced.
Predictable Costs: Often structured as an annual retainer, reducing surprise expenses.
Protects Family and Patients: Reduces emotional and logistical burden, ensures continuity of care, and minimizes risk of liability.