HIPAA and Therapist Privacy: An Idea Worth Defending

Bram Fridhandler, Ph.D.

                   

 

                  HIPAA is in the air, and in the context of the shrinking realm of privacy for psychotherapists and their patients, its "psychotherapy notes" provision is wonderful news.  Under this provision, psychotherapists can make notes for their own use with far less risk that anyone else will ever see them.  As matters stand now, no therapist can put pen to paper without running the risk that an insurance company or the patient himself or herself might someday read their private ideas, reactions, and speculations.  We are told by some legal authorities to assume as we write any notes that the patient may eventually read them, but would these same authorities blithely tell us to think only thoughts that we would have the patient hear?  We need to be able make personal notes without distraction, fear, or self-censorship. 

 

                  The APA Practice Directorate and the Mental Health Liaison Group (a coalition of practitioner organizations) went to bat for a national standard to protect the privacy of therapists' personal notes.  In their lobbying for responsible implementation of HIPAA, they successfully argued for a new type of record, the "psychotherapy note."  Under HIPAA, no insurer can require disclosure of  notes "documenting or analyzing the contents" of therapy sessions, and therapists do not need to share them with patients even if they request their records. 

 

                  But there is more to be done.  For one thing, at least one insurer has already begun to look for loopholes.  Secondly, we may need to work for an interpretation of California law that keeps these notes private from patients.  (State laws preempt HIPAA if they provide patients with greater "privacy or autonomy," and the specifics of this preemption are being worked out in the APA Practice Organization and elsewhere.)  And finally, these notes must be legally protected from subpoena, too, if we are to have true peace of mind as we do this essential aspect of our jobs. 

 

 

Originally published in California Psychologist, 2002, 35:5 (Sept.-Oct.), p. 9.  The views expressed here are those of the author and not necessarily those of CPA.  This article is educational in nature and is not intended to replace the advice of an attorney.