Psychotherapy notes are primarily for personal use by the treating professional and generally are not disclosed for other purposes. HHS commentary affirms that the right to deny access only applies to psychotherapy notes, not other mental health records:. We generally agree with the commenters concerns that denying access specifically to mental health records could create distrust.
This is the only distinction we make between mental health information and other types of protected health information in the access provisions of this rule. Unlike other types of protected health information, these notes are not widely disseminated through the health care system. We encourage covered entities that maintain psychotherapy notes, however, to provide individuals access to these notes when they believe it is appropriate to do so.
As any such disclosure is purely permissive under the Privacy Rule, mental health providers should consult applicable State law for any prohibitions or conditions before making such disclosures. Thus, there is no general right to deny access to other mental health records that are not psychotherapy notes. That should be relatively easy because, by definition, psychotherapy notes must be maintained separately from other medical records.
A patient who is denied access to their mental health records under situations 2 to 4 , above, is entitled to have the denial reviewed by a licensed independent practitioner identified by the provider. With few exceptions, the Privacy Rule requires a covered entity to obtain individual authorization prior to a disclosure of psychotherapy notes, even for a disclosure to a health care provider other than the originator of the notes, for treatment purposes.
For covered entities operating in an electronic environment, the Privacy Rule does, however, allow covered entities to disclose protected health information pursuant to an electronic copy of a valid and signed authorization, as well as to obtain HIPAA authorizations electronically from individuals, provided any electronic signature is valid under applicable law.
Although HIPAA does not give special protection to mental health records as compared to psychotherapy notes, state laws may. See more ». This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies.
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Sign Up. They claimed that this information is highly sensitive and should not be released without the individual's written consent, except in cases of emergency. One commenter suggested listing the types of mental health information that can be requested by third party payors to make payment determinations and defining the meaning of each term.
Response : As discussed above and in the NPRM, the rationale for providing special protection for psychotherapy notes is not only that they contain particularly sensitive information, but also that they are 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 not involved in the therapy. Information in these notes is not intended to communicate to, or even be seen by, persons other than the therapist. Although all psychotherapy information may be considered sensitive, we have limited the definition of psychotherapy notes to only that information that is kept separate by the provider for his or her own purposes.
It does not refer to the medical record and other sources of information that would normally be disclosed for treatment, payment, and health care operations.
We do not intend to limit the practice of psychotherapy to any specific professional disciplines. Comment : One commenter noted that the public mental health system is increasingly being called upon to integrate and coordinate services among other providers of mental health services and they have developed an integrated electronic medical record system for state-operated hospitals, part of which includes psychotherapy notes, and which cannot be easily modified to provide different levels of confidentiality.
Another commenter recommended allowing use or disclosure of psychotherapy notes by members of an integrated health care facility as well as the originator. Response : The final rule makes it clear that any notes that are routinely shared with others, whether as part of the medical record or otherwise, are, by definition, not psychotherapy notes, as we have defined them. To qualify for the definition and the increased protection, the notes must be created and maintained for the use of the provider who created them i.
The types of notes described in the comment would not meet our definition for psychotherapy notes. Comment : Many providers expressed concern that if psychotherapy notes were maintained separately from other protected health information, other health providers involved in the individual's care would be unable to treat the patient properly. Some recommended that if the patient does not consent to sharing of psychotherapy notes for treatment purposes, the treating provider should be allowed to decline to treat the patient, providing a referral to another provider.
Response : The final rule retains the policy that psychotherapy notes be separated from the remainder of the medical record in order to receive additional protection. We based this decision on conversations with mental health providers who have told us that information that is critical to the treatment of individuals is normally maintained in the medical record and that psychotherapy notes are used by the provider who created them and rarely for other purposes.
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