Do Patients Have Access to Therapy or Personal Notes?

Donna Vanderpool, M.B.A., J.D., assistant vice president for risk management at PRMS Inc., has an article in the April 18 issue of Psychiatric News. Here’s part of the article:

HIPAA’s Privacy Rule permits covered psychiatrists who choose to keep psychotherapy notes to deny patients access to those notes. The Privacy Rule definition of psychotherapy notes is “notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s record.”

The following information is considered part of the medical record and is excluded from the definition of psychotherapy notes: medication prescribing and monitoring; counseling session start and stop times; modalities and frequencies of treatment furnished; results of clinical tests; and any summary of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date. According to the Department of Health and Human Services (HHS), the agency that enforces the Privacy Rule, psychotherapy notes are limited to information that psychiatrists keep separate for their own purpose and that contains sensitive information relevant to no one else. HHS equates psychotherapy notes with process notes.

It is important to keep in mind, however, that although the Privacy Rule allows psychiatrists to deny patients access to psychotherapy notes, it also states that patients may authorize the release of their psychotherapy notes to a third party such as an attorney, another provider, or even a friend, and that psychiatrists must comply with this authorization.

State laws differ regarding patient access to their medical records. In some states, patients have access to the entire record; other states prevent patients from accessing therapists’ “personal notes” (or similar term). Additionally, some state laws may have other requirements for restrictions on the use and disclosure of these “personal notes.”

The issue of which law to follow (state or federal) will ultimately be determined by the courts. Until this issue has been resolved, the following provides a starting point for analyzing questions about patient access to psychotherapy notes. Because this is a complex and developing area of the law, an attorney should be consulted for specific legal advice.

Read the full article at Psychiatric News

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