What are HIPAA Psychotherapy Notes? Behavioral Health and Mental Health Provider Terms

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What is the Definition of Psychotherapy Notes?
The definition of "psychotherapy notes" under the HIPAA Privacy Rule is "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 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." Psychotherapy notes are commonly referred to as "process notes."

What are Progress Notes?
Progress notes are different from psychotherapy notes. Progress notes are basic records that include the assessment, diagnosis, and treatment plan. Progress notes contain information not included in psychotherapy notes, such as medication prescription, the type of treatment, and how frequently this treatment is administered. Progress notes also contain symptoms and progress. Under the Privacy Rule right of access provision, patients have a general right to access PHI in the designated record set. This PHI includes progress notes maintained in a designated record set.

Is a Patient Entitled to Access Psychotherapy Notes Under the HIPAA Right of Access Provision?
Psychotherapy notes are notes made by a mental health professional documenting or analyzing the contents of conversation during a private counseling session.  An individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set. An individual does not have a right of access to psychotherapy notes, however. Providers should keep progress notes and process notes separate. If a provider wants to ensure that psychotherapy notes cannot be accessed by a patient, the provider should keep and maintain these notes separate and apart from PHI in designated record sets, such as in a journal that is for psychotherapy notes only.

Is Written Patient Authorization Required for a Provider to Use or Disclose Psychotherapy Notes?
In general, a covered entity must obtain prior written patient authorization for any use or disclosure of psychotherapy notes to another entity.  A covered entity need not obtain authorization for any use or disclosure of psychotherapy notes under the following circumstances:

1. To carry out the following treatment, payment, or healthcare operations:
    (A) Use by the originator of the psychotherapy notes for treatment;
    (B) Use or disclosure by the covered entity for its own 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; or
    (C) Use or disclosure by the covered entity to defend itself in a legal action or other proceeding
          brought by someone who is the subject of the psychotherapy notes.
2.  A use or disclosure that is required by 45 CFR § 164.502(a)(2)(ii) or permitted by § 164.512(a);             § 164.512(d) with respect to the oversight of the originator of the psychotherapy notes; 
      § 164.512(g)(1); or § 164.512(j)(1)(i).