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What is required for using or disclosing psychotherapy notes-consent or authorization?

HIPAA Weekly Advisor, June 7, 2002

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Q: What is required for using or disclosing psychotherapy notes-consent or authorization?

A: An individual's authorization is required for uses and disclosures of psychotherapy notes, including those for treatment, payment, and health care operations. There are limited exceptions when a consent is permitted rather than an authorization and when neither a consent nor an authorization is required.

Consent may be used rather than an authorization in the following three circumstances:

• use by the originator of the notes for treatment
• use or disclosure by the covered entity in training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling
• use or disclosure by the covered entity to defend a legal action or other proceeding brought by the individual who is the subject of the notes

The rules allow limited uses and disclosures without consent or authorization in the following circumstances:

• when required for enforcement of the regulations by the Secretary of the Department of Health and Human Services (HHS)
• when mandated by law
• when needed for oversight of the health care provider who created the psychotherapy notes
• when needed by a coroner or medical examiner
• when needed to avert a serious and imminent threat to health or safety

Individuals have the right to protected health information, but not to psychotherapy notes. However, HHS encourages covered entities to provide patients access to these notes when they believe it is appropriate to do so.

The rule defines "psychotherapy notes" as "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 exclude medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date."

Editor's note: If the proposed modifications to the privacy rule are finalized, HHS will eliminate the consent requirement and clarify that facilities cannot use or disclose psychotherapy notes for purposes of another entity without individual authorization.

Brought to you by attorneys Marty Baxter and Gretchen McBeath at Bricker and Eckler, LLP (http://www.bricker.com/hipaa) and The Quality Management Consulting Group, Ltd. (http://www.qmcg.com). E-mail: mbaxter@bricker.com or gmcbeath@bricker.com.

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