Therapist Under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, you have the legal right to see most, but not all, of your medical records. In fact, according to the Department of Health and Human Services, you do not have a right to any psychotherapy notes (also known as “process notes”) taken during your sessions or treatment.
Under current federal law, process notes are considered separate from your medical records (the latter of which contains things like vaccination history and lab results).1 As opposed to diagnostic records, process notes are considered thoughts and impressions therapists have that are not unlike keeping notes in a journal. They may lead a therapist to a diagnosis, but they are not the diagnosis.
Because of this, it up to your therapist as to whether he or she will release them. Under HIPAA, a therapist is not legally required to do so.
If the therapist believes that something in the process notes may harm you in any way, he or she has every right to withhold them. What a therapist cannot do is withhold them as a means to compel payment of a late bill. Any coercion of this sort is punishable under the law.1
While denying process notes may seem very unfair, there is a rationale to the law. During the course of a therapy session, the therapist needs to jot down thoughts and impressions in real-time. As such, the notes may be raw and contain words or statements that are meant to be relevant but end up hurting the therapist-client relationship.
To supporters of the HIPAA legislation, releasing notes is not unlike posting a diary on the internet. The meaning of the notes may be prone to misinterpretation and taken well out of context.
Federal Law vs. State Law
While HIPAA dictates that process notes can be legally withheld, state laws can often override the federal legislation.
The general standard is that if a state law is more protective of the patient, it takes precedence over HIPAA.2 In other words, if state law does not deny access to the notes, it is considered more protective and thereby supersedes federal law. This is true even if a psychiatrist keeps the process notes separate from the patient’s medical records.
In some states, like Utah, a therapist must provide new patients with a consent form for the disclosure of medical information. Once signed, a patient is allowed access to any and all notes. In other states, like Vermont, no such written consent is required; it is simply afforded without limitation by state law.3
Meanwhile, in states like New Hampshire, a therapist can be compelled to release the process notes if presented with a subpoena stating that previous attempts to acquire the notes have been unsuccessful.
Even if your state law adheres to the standards of HIPAA, it does not mean that you cannot request your notes or that a therapist is barred from releasing them.
If you really want them, start by asking yourself why. Do you want them because you are moving to a new city or therapist? Do you believe that your therapist has done something wrong and actionable? Will the notes help clear up any confusion or provide you insights you don’t already have? Or, is it just that you want them, plain and simple?
Whatever the reason, you need to be clear in your explanation to your therapist. There is no point in making threats if the state and federal laws prohibit you access. Be persistent, if needed, but be reasonable.
In some cases, a therapist may be willing to review the notes with you on a one-on-one basis. This at least allows the therapist to provide context and insights that the notes alone may not offer.
However, if a therapist turns you down, ask for an explanation but avoid getting into an argument based on principles. If you have had a good relationship with the therapist, you may need to accept that he or she has your best interests in mind.
Keep focused on your goals, but don’t let principles destroy an otherwise valuable and productive relationship.
As opposed to diagnostic records, process notes are considered thoughts and impressions therapists have that are not unlike keeping notes in a journal. They may lead a therapist to a diagnosis, but they are not the diagnosis.Tags: diagnostic records, medical information