Most health care providers have implemented HIPAA compliant policies and procedures and have made them operational. We often see providers who have not given appropriate levels of thought to behavioral health records. HIPAA and state laws generally provide different levels of protection for patient information that relates to mental health issues or alcohol and drug treatment. This requires providers to have policies and procedures in place that help employees identify these types of records and which describes appropriate precautions and special rules that apply.
Generally, Federal law treats general mental health records in the same way it treats other types of health information. Many state statutes require more protection over confidentiality of mental health records than general health information. Further distinction is made between general mental health/behavioral health records and the subset of those records that include psychotherapy notes. Psychotherapy notes are rarely subject to disclosure to third parties. In many cases even the subject patient can be denied access to psychotherapy notes.
It is important that policies and procedures clearly define mental health records and psychotherapy notes and describe the special restrictions that are applicable to both. Clearly, the special restrictions on psychotherapy notes must be honored. It is also important that healthcare providers do not apply the broader restrictions that are applicable psychotherapy notes to more general mental health records. Failing to understand the distinction between the various types of records can have adverse consequences under applicable laws and can even put patient care at risk.
This issue is further complicated because State and Federal protections can be different and even conflicting. This requires providers to perform a preemption analysis to determine which law to follow. That analysis can be different depending on the type of record involved and the purpose and nature of the contemplated release.
Psychotherapy notes are given special treatment under Federal law. Psychotherapy notes are defined under Federal law as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. Psychotherapy notes can rarely be released to a third party and often even the patient can be denied access to these records. Certain information is not included within the definition of psychotherapy notes such as medical prescriptions, session start and stop times, frequency of treatment, results of clinical tests, summaries of diagnosis, symptoms, prognosis, etc. This information is considered to be mental health records but does not receive the same special protection as psychotherapy notes.
Organizations should read and understand the distinction between general mental health records and psychotherapy notes. Separation is key to complying with restrictions that are applicable to psychotherapy notes. Psychotherapy notes should be stored separately from the patient’s medical records (which includes behavioral and mental health records).
Organizations that use electronic medical records (EMR) system must devise ways to separate psychotherapy notes from other types of medical records. This might include integration of special naming and filing standards into the electronic record. Staff training is required to assure that the differences between psychotherapy notes and mental health records is maintained.
Some state laws complicate the analysis even further by provided additional restrictions on general mental health records. Depending on your state, this analysis can become quite complicated and dependent on the purpose and nature of the contemplated release, application of preemption rules, and interpretation of state and Federal statutes and regulations.