Remember to Keep Psychotherapy Notes Separate From Patient’s Medical Record

The Privacy Rule under the Health Insurance Privacy and Portability Act (HIPAA) generally treats all protected health information uniformly with the exception of “psychotherapy notes.” These notes receive greater protections against disclosure if they meet the strict definition set out in HIPAA and are kept separate from the remaining medical record.

HIPAA explicitly defines “psychotherapy notes” as the following: “Notes recorded (in any medium) by a health care 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 that are separated from the rest of the individual’s medical record. “

Psychotherapy notes do not include information contained elsewhere in the medical record or information regarding:

• Medication prescription and monitoring

• Counseling session start and stop times

• Modalities and frequencies of treatment furnished

• Results of clinical tests

• Any summary of the following items: Diagnosis, Functional status, Treatment plan, Symptoms, Prognosis, Progress to date

Psychotherapy notes are treated differently from other protected health information because they contain the psychiatrist’s personal notes and often include sensitive information of the type that is not normally needed for the patient’s “treatment, payment, or health care operations” as defined by HIPAA.

The heightened protection against disclosure afforded to psychotherapy notes means that with the exception of disclosures that are required by law, that is, duty to warn or report abuse or neglect, a patient must specifically authorize the disclosure of psychotherapy notes to a third party. This heightened protection also extends beyond the patient’s death. Additionally, in 1996 the United States Supreme Court ruled in Jaffee v. Redmond that psychotherapy notes were not discoverable even pursuant to a court order.

Moreover, the HIPAA Privacy Rule now requires that covered entities (CEs) that maintain psychotherapy notes include a statement in their Notice of Privacy Practices indicating most uses and disclosures of psychotherapy notes. This requirement does not necessitate that CEs include a description of their record-keeping practices pertaining to psychotherapy notes.

To sum up, psychiatrists are not required to maintain “psychotherapy notes.” If, however, psychotherapy notes are maintained, the psychiatrist should understand how they are defined and protected under HIPAA and should ensure that the notes are kept separate from the patient’s medical record. In addition to understanding HIPAA’s requirements, psychiatrists also need to be aware of any applicable state statutes pertaining to patient privacy protections.

For more information, see APA’s HIPAA Privacy Manual Update, A Guide for Your Psychiatric Practice, and consult with your local attorney or risk management professional if you have any questions or concerns.

For other risk management topics, please see the online risk management courses available on APA’s Learning Center Risk Management page. ■