"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)
Definition of "Psychotherapy Notes" in HIPAA Regulations:
