Mutual Matters

Frequently Asked Questions on Privacy and Psychotherapy Notes

Posted by Dana N. Taylor, MHA, CPHRM, CPPS on Jan 17, 2019 12:30:00 PM

R_FemaleDoctorNotesPsychotherapy notes receive special protection under the HIPAA Privacy Rule (“Privacy Rule”).  It is important for practices with behavioral health providers to ensure their staff understands the special protections provided to psychotherapy notes.

Below are the most frequent questions MagMutual receives regarding the release of psychotherapy notes:

Does a patient have a right to access their own psychotherapy notes?

No, the patient does not have a right to access their own psychotherapy notes. However, the provider, in their own discretion, can provide a copy of the patient’s psychotherapy notes to the patient consistent with applicable state law.

If my practice receives a subpoena or court order for “all mental health records,” should I also release the psychotherapy notes?

No. If the subpoena or court order does not specifically request “psychotherapy notes,” do not release the psychotherapy notes. Only release the applicable mental health records.

Do I need written authorization to release my patient’s psychotherapy notes to another provider for treatment purposes?

Yes, you must have the patient’s written authorization to release psychotherapy notes to another provider for treatment purposes.

What can I do with the psychotherapy notes without written authorization?

The only things you can do without written authorization from the patient are to release the psychotherapy notes if required by law, you are reporting abuse, neglect, or domestic violence or there is a serious threat to the health or safety of the patient. We advise that you always obtain written authorization from the patient.

What if I get a request from law enforcement for the psychotherapy notes?

You should ask the law enforcement official to obtain a court order signed by a judge that specifically requests the psychotherapy notes. If one of your patients presented at a hospital emergency department, the emergency department physician can call you to discuss the patient’s case. This discussion can occur without the patient’s written authorization under the HIPAA psychotherapy note exception for serious threat to the health or safety of the patient. 

To read more about the special protections regarding psychotherapy notes please click below. 

Read more 

Topics: HIPAA and Cybersecurity

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As one of the leading mutual providers of Medical Professional Liability insurance, we're here to help all healthcare professionals with the challenges they face on a daily basis. The topics we cover include: 

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