Behavioral health professionals understand that proper documentation of medical information is an essential and required component of quality patient care. Accurate and detailed notes of patient visits and interactions help mental health professionals diagnose and treat patients quickly, safely, and accurately, and help them devise effective treatment plans.
An individual’s mental health information is highly sensitive. The federal government under the Health Information Portability and Accountability Act (HIPAA) adds another level of protection to some, though not all, mental health information, provided that certain steps are taken by the mental health professional when creating and storing this information. It is important to know the difference between psychotherapy notes and progress notes to further safeguard this information from disclosure when responding to legal and other requests for a patient’s mental health information.
Psychotherapy notes are granted special protection under HIPAA because they are likely to include particularly sensitive patient information and the personal notes of the treating clinician. These personal notes (think “chicken scratch”) are intended to help the clinician recall any discussion or remarks. Generally, they are of little or no value to others, and are not seen by persons other than the clinician. The provider’s personal notes must be kept separate from the mental health record, including progress notes.
Psychotherapy notes are defined by HIPAA Regulations 45 CFR 164.501 (65 Federal Register at 82805)¹ as: 1) Recorded by a healthcare provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session, and, 2) Maintained separate from the medical record (actually separate in a different location—colored paper in the same chart is NOT considered separate). Most importantly, a psychotherapy note does NOT contain:
- Medication prescription and monitoring
- Duration of encounter
- The modalities and frequencies of treatment furnished
- Results of clinical tests
- Any summary of diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date
Progress notes on the other hand are part of a patient or medical record. According to the California Health and Safety Code,² a patient record is a document “in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient.” A patient record includes the mental health record which is comprised of information specifically relating to the evaluation or treatment of a mental disorder.² In general, a patient record (progress note) includes the following:
- Documents which indicate the nature of the services rendered
- The clinical documentation created by the provider during the course of therapeutic treatment
- Any summary of diagnosis, functional status, the treatment plan including medication prescribing and administering, symptoms, prognosis, and progress to date
Requests for Information
A covered entity generally must obtain a specific authorization for disclosure of psychotherapy notes to a person other than the person who created the notes. This authorization 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 healthcare operations. This additional level of individual control provides greater protection than a general application of the “minimum necessary” rule.
Healthcare professionals should not consider the extra privacy protections afforded to psychotherapy notes as applicable to general mental health records, or the overall care and treatment of a patient could be impacted. Mental health records are considered to fall within general protected health information (PHI) and are part of the general health record, which are covered by general authorizations for disclosure of patient health records.
There are a few exceptions for which psychotherapy notes may be disclosed without authorization (other than treatment, payment or operation of one’s practice).³ Authorization is not required for use or disclosure of psychotherapy notes for law enforcement purposes or legal mandates, certain oversight activities authorized by federal law, use by a coroner or medical examiner, or avoidance of a serious and imminent threat to health or safety.³
Recall that the “minimum necessary” requirement mandates physicians to restrict the disclosure of confidential information to the minimum amount of information needed. Psychotherapy notes are granted more protection with regard to disclosures and subpoenas but a) there are currently no state statutes about whether psychotherapy notes should be included in disclosed records, and b) no record is ever completely immune from disclosure.4
At some point in time, you may be asked to disclose a patient’s psychotherapy notes. It is critical to understand your obligation when it comes to sharing psychotherapy notes to avoid any costly patient privacy or HIPAA violation. To ensure that a patient’s records are disclosed in compliance with all applicable laws, consider the following:
- Ensure that all staff know the difference between the patient’s medical record and psychotherapy notes. Progress notes are part of the medical record!
- Keep your psychotherapy notes separate from the patient’s clinical record.
- Reach out to your electronic medical record (EMR) provider to determine how to differentiate your psychotherapy notes from the clinical medical record.
- Create a policy and procedure for staff members to use when confronted with a patient or 3rd party request for medical records.
- Ensure you are using an appropriate authorization for release of medical records. For CAP’s template see the following link: Authorization for Use and Disclosure of Medical Information Release (English) | The Cooperative of American Physicians (capphysicians.com)
- Seek legal guidance for complex questions regarding release of information .
HIPAA affords specific protection to psychotherapy notes, but no special protections generally for mental health records. However, certain states may have in place stricter safeguards for mental health records, and HIPAA requires that providers comply with these additional restrictions.5
Monica Ludwick is a Senior Risk & Patient Safety Specialist. Questions or comments related to this article should be directed to MLudwick@CAPphysicians.com.
¹CMA Legal Counsel. 2022. Confidentiality of Sensitive Medical Information. California Medical Association. https://www.cplh.org/document-library/detail/viewhtml/productcd/4250. Accessed 6/24/23.
²Cal. Health & Safety Code § 123105(d). Section 123105, https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sec…. Accessed 6/22/23.
³45 CFR 164.508. https://www.ecfr.gov/current/title-45/section-164.508. Accessed 9/8/23.
4"Minimum Necessary Requirement" Health and Human Services. July 26, 2013. https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/minimum-ne….
545 CFR 160.203. https://www.ecfr.gov/current/title-45/part-160/section-160.203.