Psychotherapy Notes Protected by HIPAA

June 14, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

How many times have you tried to no avail to get treatment notes from your client’s treating psychiatrist or psychologist, only to have an ALJ (Administrative Law Judge) deny the claim because there were no treatment notes to back up an assessment from the treating sources? Or deny the claim even when you obtained the treatment notes because, in the ALJ’s opinion, the treatment notes demonstrated that the claimant’s condition was “stable,” or in some other way contradicted the treating source opinion? These scenarios might provide fodder for appeals, but what about trying to deal with these issues at the ALJ level?

SSA’s own Publication No. 64-103, issued January 2008, might help.  This “Fact Sheet for Mental Health Care Professionals: Supporting Individuals’ Social Security Disability Claims” reminds treating sources how important it is to provide information to SSA. It spells out the provisions of the Health Insurance Portability and Accountability Act (HIPAA), the Substance Abuse Act, and the Family Educational Rights and Privacy Act (FERPA) that permit them to disclose information.

The publication also reminds treating sources that “psychotherapy notes” as defined by HIPAA can be protected:

Social Security recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called “process” or “session” notes) and does not need the notes. As HIPAA defines the term, “psychotherapy notes means notes recorded in any medium by 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 excludes 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.”

If you keep psychotherapy notes separate from your other medical records, you can send the set of records without the psychotherapy notes. If you do not keep psychotherapy notes separate from other parts of the medical records, you can legally disclose all of the records. However, you can choose to black out or remove the parts of the records that would be considered psychotherapy notes if kept separately. Another option is to prepare a special report detailing the critical current and longitudinal aspects of your patient’s treatment and their functional status.

Thanks to Chris Cadin of Legal Services of Central New York for pointing out this nugget, which is available at http://www.ssa.gov/disability/professionals/mentalhealthproffacts.htm.  Let us know if you are able to use it successfully to prevent ALJs from demanding all treatment notes.