Open Bar: Special Treatment of Psychotherapy Notes Under HIPAA

A frequent question we receive is whether a provider is required to release psychotherapy notes to a patient. The answer is no. A patient does not have a right to access or compel disclosure of their psychotherapy notes.   

Psychotherapy notes are afforded special protections under the HIPAA Privacy Rule because they contain exceptionally sensitive information and are the personal notes of the mental health professional, which typically are useful to only the provider who created them. 

Psychotherapy notes are notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private, group, joint or family counseling session and are kept separate from the rest of the individual’s medical record (45 CFR 164.508).

Certain types of information do not fall within the definition of “psychotherapy notes” and may be released upon receipt of a proper HIPAA authorization: medications and prescriptions, monitoring, the times and dates of counseling sessions, treatment modalities, frequency of treatment furnished, results of clinical tests and any summary of diagnosis, functioning, treatment plan, symptoms, prognosis and progress to date (see 45 CFR 164.501). Anything that falls outside the definition of psychotherapy notes is accessible by patients or third parties who are authorized to receive patients’ protected health information.

Mental health information, exclusive of psychotherapy notes, may be released pursuant to a HIPAA authorization form if that item is initialed on the form. However, since psychotherapy notes that are maintained separately from other notes are not accessible by patients or third parties, the mechanism for mandating the release of psychotherapy notes is when a provider receives a court order.

A notable exception to the special protections afforded to psychotherapy notes exists for disclosures required by law, such as for mandatory reporting of abuse and mandatory “duty-to-warn” situations regarding threats of serious and imminent harm made by the patient.

MLMIC policyholders can reach out to our healthcare attorneys for questions about psychotherapy notes or other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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Sources:

1. https://www.hhs.gov/hipaa/for-professionals/faq/2088/does-hipaa-provide-extra-protections-mental-health-information-compared-other-health.html
2. https://www.hhs.gov/hipaa/for-professionals/faq/2088/does-hipaa-provide-extra-protections-mental-health-information-compared-other-health.html

This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.