TherapyNotes & the "Clinical Record"
Preparedby Dunlap & McDowell for 2-28-03 Pragmatics of HIPAA training.
This discussion of what HIPAA's definition of "psychotherapy note"might exclude includes most of what mental health professionals think of as"psychotherapy notes" and certainly does not represent the promised"special status" for psychotherapy notes that so many of our professionalorganizations have been trumpeting in their newsletter headlines.
“Psychotherapy Notes”--According to HIPAA (An extremely idiosyncratic definition)
(see Federal Register/ Vol.65, NO. 250: p. 82497; also 82622, 82623; 82652-82654)
A. The final rule (p. 82497) defines “psychotherapy notes” as 1) “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.”; 2) notes “created and maintained for the use of the provider who created them, i.e., the originator, and 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...”. 3) Such notes will not be meet the criteria if 1) they are not kept separate from the medical record or 4) if the info is routinely shared for treatment--e.g. in an agency using a team, any info that is of a “type” that is routinely shared, “by definition”, can not qualify for protection of “psychotherapy notes” (p. 82654-57).
B. “Psychotherapy notes” specifically EXCLUDES:
1. Any summary of Symptoms
2. “ “ “ Diagnosis
3. “ “ “ Progress
4. “ “ “ Treatment Plan
5. “ “ “ Functional Status
6. “ “ “ Prognosis
7. Results of clinical tests
8. Modalities and frequency of Tx;
9. Start and stop times of each session
10. Medication: prescription and monitoring
11. “Any other information necessary for treatment or payment”--the latter
is “always placed in the patient’s medical record [emphasis added].
Information from the medical record is routinely sent to insurers for
payment” (p.82622-23). Also an earlier section of HIPAA states the
“designated record sets include, at a minimum, the medical record and
billing record…” (p.82489).
12. Notes kept with medical records
13. Any info of a “type” “routinely shared” with team, for payment, etc.
C. When no authorization is needed for psych notes:
1. For the use of the person who created the notes to treat
2. For the “Covered Entity” to conduct skill training programs
3. For a Covered Entity to defend themselves in a legal action brought by
the subject of the PHI
4. For “enforcement purposes” section 164.512 (d); coroner or medical
examiner; to avert serious threat to health or safety
Comments: The precise wording of the final rule notwithstanding, the HHS printed a long discussion of commentary they received and their responses elaborate their intent. In that discussion, psych notes are defined as “the personal notes of the therapist, intended to help him or her recall the therapy discussion and are of little or no use to others [emphasis added] not involved in the therapy”. At another point (p.82623), HHS itemizes the exclusions to psychotherapy notes (diagnosis, prognosis, etc.) but also adds “theme of psychotherapy session”. No explanation is offered about this disparity.