"Psychotherapy Notes" are granted special protection
under HIPAA due to the likelihood they contain particularly sensitive
information, and
also because they are the personal notes of the treating therapist—
intended to help him or her recall the therapy discussion or session
content, and are of little or no use to others not involved in the
therapy. Information in these psychotherapy notes is not intended to
communicate to, or even be seen by, persons other than the therapist. This
information is kept separate by the provider for his or her own
purposes/use.
Psychotherapy notes are like process notes that capture
the therapist’s impressions about the patient, contain details of the
psychotherapy conversation considered to be inappropriate for the medical
record, the content of a dream, or the experience of guilt associated with
a "forbidden" feeling, etc., are used by the provider for future sessions.
Notes that are routinely shared with others, whether as
part of the medical record or otherwise, are, by definition, not
psychotherapy notes. To qualify for the definition and the increased
protection, the notes must be created and maintained for the use of the
provider who created them. They must not be the only source of any
information that would be critical for the treatment of the patient or for
getting payment for the treatment.
The rule provides special protection for the information
in psychotherapy notes, but it does not extend that protection to the same
information that may be found in other locations. The psychotherapy notes
are not required to be in a particular format (i.e., hand-written).
A covered entity generally must obtain an authorization
for disclosure of psychotherapy notes, or for use by a person other than
the person who created the psychotherapy notes. This authorization is
specific to psychotherapy notes and is in addition to any consent an
individual may have given for the use or disclosure of other protected
health information to carry out treatment, payment and health care
operation. This additional level of individual control provides greater
protection than a general application of the "minimum necessary" rule.
The purposes for which psychotherapy notes may be
disclosed without authorization for purposes other than TPO (treatment,
payment, operations of one's practice) are limited. Final rule requires
covered entities to obtain authorization to use or disclose psychotherapy
notes for purposes listed in §164.512, with the following exceptions: an
authorization is not required for use or disclosure pf psychotherapy notes
when the use or disclosure is required for enforcement of this rule
[§164.520 (a)(2)(ii)]; when required by law [§ 164.512(a)]; for oversight
of provider who created psychotherapy notes [§164.512(d)]; coroner or
medical examiner {§164.512(g)(1)]; or when needed to avert serious &
imminent threat to health or safety [§164.512(j)(1)(I)].
One case where the information in psychotherapy notes
may prove invaluable, but authorization by the client is impossible and
authorization by a surrogate is potentially contraindicated, is in the
investigation of the death of the client. The final rule allows for
disclosures to coroners or medical examiners in this limited case. Fed.
Reg / Vol 65, No. 250 / Dec 28th 2000 - Rules & Regulations.
Consents and authorizations described in §164.506 and
§164.508 should not be construed as waivers of a patient’s evidentiary
privilege. See discussions under § 164.506.
Audits or evaluations should not require access to
psychotherapy notes. Fed. Reg / Vol 65, No. 250 / Dec 28th 2000
- Rules & Regulations.
Authorization is not required for use or disclosure of
psychotherapy notes when needed for oversight of the provider who created
the notes.
Psychotherapy notes should be available for the defense
of the provider who created them when the individual client puts the
contents of the notes at issue in a legal case. The provider is allowed to
disclose the notes to his or her attorney for the purpose of preparing a
defense. Any other disclosure related to judicial and administrative
proceedings is governed by § 164.512(e).
Despite statements made by managed care organizations or
health plans that they own the mental health records of their subscribers,
the ability to use or disclose an individual’s information is limited by
state law & this rule. Under this rule, a mental health plan would not
have access to psychotherapy notes created by a covered provider unless
the individual who is the subject of the notes authorizes disclosure to
the health plan. Fed. Reg / Vol 65, No. 250 / Dec 28th 2000 -
Rules & Regulations.
Separate authorization (separate from other
authorizations for disclosures) must be obtained for most uses or
disclosures of psychotherapy notes, including those for TPO. The need for
such authorizations should be very rare.
If a specific provision of law requires the disclosure
of psychotherapy notes, a provider may make the disclosure under §
164.512(a).
A disclosure of psychotherapy notes without a specific
authorization is permitted "...by the covered entity in training programs
in which students, trainees, or practitioners in mental health learn under
supervision to practice or improve their skills in group, joint, family,
or individual counseling." § 164.508(a)(2)(i)(B)
