Psychotherapy notes - Are They Really Private Under HIPAA and How Can you Get Them?

Description

HIPAA is often described as giving patients broad rights to access their own medical records, and in most cases that is true. Under the HIPAA Privacy Rule, individuals generally have a legal right to inspect and obtain copies of their protected health information (PHI) contained in a provider’s or health plan’s “designated record set”. This includes medical records, billing records, clinical notes, test results, diagnoses, treatment plans, and other information used to make decisions about a person’s care. However, psychotherapy notes are a notable and deliberate exception to this general rule.

HIPAA defines psychotherapy notes narrowly. They are notes recorded by a mental health professional that document or analyze the contents of a counseling session and are kept separate from the rest of the patient’s medical record. Importantly, psychotherapy notes do not include information such as medication prescriptions, session start and stop times, treatment modalities, diagnoses, symptoms, prognoses, or progress summaries. Those types of information remain part of the standard medical record and are subject to the individual’s right of access.

Unlike most mental health information, psychotherapy notes receive special protection under HIPAA. While HIPAA generally treats mental health information the same as other health information, psychotherapy notes are singled out because they often contain highly sensitive, personal impressions and clinical hypotheses intended primarily for the therapist’s own use. As a result, individuals do not have an automatic right under HIPAA to access their psychotherapy notes, even though they may access nearly all other mental health records.

Disclosure rules for psychotherapy notes are also more restrictive. In most circumstances, a covered entity must obtain the patient’s specific written authorization before disclosing psychotherapy notes. This requirement is stricter than the rules governing other PHI, which can often be shared for treatment, payment,or health care operations without special authorization. HIPAA allows only limited exceptions where psychotherapy notes may be disclosed without authorization, such as for the therapist’s own use in treatment, for training purposes under supervision, or to defend against a legal action brought by the patient.

Despite these strong privacy protections, psychotherapy notes are not absolutely private. HIPAA permits disclosures when required by law or when necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others. In such situations, a provider may disclose relevant information to appropriate parties, consistent with professional judgment and applicable state laws, including duty-to-warn or mandatory reporting statutes.

Finally, while HIPAA establishes a federal baseline, state laws may expand or further restrict access to psychotherapy notes. If state law provides greater privacy protections, those protections prevail. Conversely, state law may also create specific legal mechanisms—such as court orders or subpoenas—that affect whether psychotherapy notes can be obtained.

Note also state licensure laws that mandate what must be in a mental health record.

In short, psychotherapy notes occupy a unique position under HIPAA: they are more protected than other health records, excluded from the standard right of access, and subject to stricter disclosure rules—yet they are not immune from disclosure in all circumstances.

Areas Covered in the Session

• Overview of HIPAA’s general Right of Access
• Definition of designated record sets
• What information individuals can usually access under HIPAA
• Definition of psychotherapy notes under HIPAA
• Why HIPAA provides extra protections for psychotherapy notes
• Authorization requirements for disclosure
• Permitted disclosures without authorization
• Safety exceptions (serious and imminent threat)
• Interaction between HIPAA and state laws
• Tips and techniques to avoid psychotherapy note battles

Why should you Attend?

Learn just how private a health care practitioner’s psychotherapy notes actually are and the circumstances in which they can become un-private.

Who will Benefit?

Healthcare practitioners offering mental health counseling