When you practice under interjurisdictional authority you are subject to the receiving state’s rules as well as your own, and record obligations are a common place they conflict. The practical approach is to follow the stricter requirement on retention, and the client’s state on access, minors and disclosure.
Nothing about a multistate caseload changes until a subpoena or a records request arrives, at which point the differences become the only thing that matters.
Two bodies of law at once
Practicing under interjurisdictional authority means complying with your home state’s requirements and the receiving state’s.
Where they agree, nothing happens. Where they differ, you need a policy that does not require you to research it under time pressure.
Retention periods differ
Requirements range widely, and the period for minors is frequently measured from majority rather than the last session.
The workable rule is simple: keep everything for the longest period that could apply. Storage is cheaper than the alternative.
Access rights differ
Who may request a record, what may be withheld, how quickly you must respond, and what you may charge are all state-specific.
The client’s state protects the client, and that is the law to follow when a request arrives.
Minors are the sharpest difference
States take genuinely different positions on parental access to an adolescent’s record and on what a minor may consent to independently.
Treating your home state’s rule as universal in a multistate practice will eventually produce a disclosure you cannot defend.
Subpoenas
A subpoena from another state is not automatically enforceable against you, and responding to it as though it were is a common error.
Get advice. The wrong response here discloses material that privilege would have protected.
Consent forms
Required content for informed consent and for release of information differs enough that many practices maintain state variants rather than one document.
It is more administration and considerably less risk.
Closing a practice
Retention obligations outlive the practice. Several states require a designated custodian and notice to clients about how to obtain records.
Planning it while practicing is straightforward; arranging it during a health crisis is not.
Practical policy
Record the client’s state in the file, apply the stricter retention rule across the board, and keep a short reference of access rules for each state you serve.
Two pages, reviewed annually, answers almost every version of this question before it arrives.
Storage and security
Where the record physically sits does not change which state’s rules apply, but breach notification obligations can follow the client’s state as well as yours.
A single incident affecting clients in six states can trigger six notification regimes with different deadlines.
Note the state in the record
The client’s location at the time of each session is the fact every one of these questions turns on.
Capturing it as a routine field, rather than reconstructing it from memory later, is the cheapest safeguard in the whole set.
Common questions
- How long do I keep records?
- Follow the longer of your home state’s and the client’s state’s retention period. Federal and payer requirements can extend it further.
- Which state governs access requests?
- Generally the state where the client is located, which is the law protecting them.
- What about records for minors?
- Rules on parental access and adolescent confidentiality differ substantially by state, and the client’s state usually governs.
- Do I need separate consent forms per state?
- Often the content differs enough that a single form cannot satisfy every state, so practices maintain variants.
- What happens if I close my practice?
- Retention obligations survive closure, and a custodian arrangement is required in several states.
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