[Transcript] Episode 418: 4 Things You Need to Know About Psychotherapy Notes

Evan Dumas

You’re listening to Group Practice Tech, a podcast by Person Centered Tech, where we help mental health group practice owners ethically and effectively leverage tech to improve their practices. I’m your co host, Evan Dumas.

 

Liath Dalton 

And I’m Liath Dalton and we are Person Centered Tech. This episode is brought to you by Therapy Notes. Therapy Notes is a robust online practice management and Electronic Health Record system to support you in growing your thriving practice. Therapy Notes is a complete practice management system, with all the functionality you need to manage client records, meet with clients remotely, create rich documentation, schedule appointments, and bill insurance all right at your fingertips. To get two free months of Therapy Notes as a new Therapy Notes user, go to therapynotes.com and use promo code PCT.

 

Evan Dumas 

Hello, and welcome to Episode 418: Four Things You Need to Know About Psychotherapy Notes.

 

Liath Dalton 

Indeed, this is a topic that I’m actually really excited to talk about, because it’s so important and impactful, and there are a lot of misconceptions around what constitute psychotherapy notes, and kind of then as a result, how those notes are protected from disclosure and release and so on that are really consequential.

 

Liath Dalton 

And so we want to clear up the misconceptions and provide clarity around what psychotherapy notes are, what they are not, and talk about the protections under HIPAA.

 

Evan Dumas 

Mhm.

 

Liath Dalton 

So item one in our list of four things you need to know, is something that, the first part of that many folks do know, which is that under HIPAA, the federal regulations, psychotherapy notes are protected from release.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

And to be more precise, though, what protected from release means is that they are protected from release and a normal records release, to a client, to another provider, and that you don’t even have to release psychotherapy notes to the client that the psychotherapy notes are about,

 

Evan Dumas 

Nope.

 

Liath Dalton 

when they do a records request, right? The caveat here though, is that HIPAA provides for this protection for psychotherapy notes, if the state also provides for that protection of psychotherapy notes.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

So whether or not psychotherapy notes are protected in that way, is entirely dependent upon your state law.

 

Evan Dumas 

Mhm.

 

Liath Dalton 

So it is absolutely necessary to know what your state law regarding psychotherapy note protections is. Because if you are not aware of that, and are operating under the assumption that because there’s this provision under HIPAA to protect psychotherapy notes, that they are protected, but you are in a state where they are not protected, then in the event of a records request, you would have to release those.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

And if you aren’t including them in records releases, that means you’re not complying with state law or HIPAA.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

Which, we definitely want to avoid both those things. So it’s important to identify what your state law is regarding psychotherapy notes. Now, before we send you off to start reading all of the statutes, a good way to find that out quickly is going to be through the local chapter of your professional association. 

 

Evan Dumas 

Mhm.

 

Liath Dalton 

Their professional affairs division or kind of legal support division will absolutely know the answer to that question.

 

Evan Dumas 

Mhm.

 

Liath Dalton 

And so that is a good, good way to quickly identify it if it’s not something that you already know the answer to. And then, what follows on from whether or not they’re protected, is that your HIPAA Notice of Privacy Practices actually must specify the state specific piece of psychotherapy notes.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

Your Notice of Privacy Practices has to include whether or not you keep psychotherapy notes. And in the customization section of NPP, it has to include where there are state law protections that are more stringent than federal, as well.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

So if if you are using a template, NPP, which, absolutely nothing wrong with that, and there’s actually a greet template directly from HHS, a model HIPAA Notice of Privacy Practices, you, though, in your use of any template need to make sure that it’s customized to contain all the particularities that are applicable to your practice. And that’s the case very much so when it comes to an NPP and the psychotherapy note component of it, and then the state law specific piece of it as well.

 

Liath Dalton 

So, again, to summarize, psychotherapy notes are protected under HIPAA, if they’re protected by the state, your Notice of Privacy Practices must include whether or not you keep psychotherapy notes as a practice, and include the state specific piece of it.

 

Evan Dumas 

Yeah, people gotta know their rights.

 

Liath Dalton 

Exactly, yes. They gotta know, your rights, their rights, and you have to know your responsibilities that relate to upholding their rights, of clients and patients.

 

Liath Dalton 

So now that we got that portion, kind of out of out of the way, the really meaty consideration is, what are psychotherapy notes? And what are they not? So Evan, what is kind of a common way where we see those two things get convoluted for folks?

 

Evan Dumas 

Yeah, we run into a lot of situations, where people just say, well, I got my process notes, and then I have the actual client notes. And the process ones are the ones that helped me sort of determine what the notes are going to be, and I put all my stuff in there. And then I make the clinical notes afterwards. So it’s more just like a, they’ve decided, which note is which. And so that’s like, it’s like the the extent of it of their, their their critical thinking processes, is like oh, I have chosen.

 

Liath Dalton 

Right, right. And so this is where getting into what psychotherapy notes are not is so important. So I’m actually going to share the actual definition of psychotherapy notes from HIPAA, which is that – bear with me here while I, it’s not too long, thankfully.

 

Liath Dalton 

So psychotherapy notes means notes recorded in any medium by a healthcare 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.

 

Liath Dalton 

Okay, that’s the first part. So now that doesn’t, you know, conflict in a way with the sort of process versus progress note way that Evan just described folks are applying this, right? However, the next part is what really clarifies things.

 

Liath Dalton 

Psychotherapy notes, excludes medication, prescription and monitoring; counseling sessions 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.

 

Liath Dalton 

So, if a psych – what you’re conceptualizing of, or a clinician on your team is conceptualizing of as a psychotherapy note, contains any of those elements, it is not actually something that qualifies as a psychotherapy note, and therefore cannot be excluded from release.

 

Liath Dalton 

And so it is what it is contained in a psychotherapy note that has that label correctly applied to it, is really, really limited. It’s not going to be some something that can contain what the discussion, all the contents of discussion in the therapy session; or a sort of functional status evaluation; or how the client is progressing or regressing. None of those elements can be contained in a psychotherapy note.

 

Liath Dalton 

What a psychotherapy note contains, should be items that are related purely to the providers’ own processing and reflections relating to working with the client, which would not have utility to the client, and, very importantly, to any other providers who might be treating the client.

 

Liath Dalton 

And there’s a, you know, something that has come up when we’ve done trainings around documentation, has been this sense that in order to, and this isn’t across the board, but it’s held by by some some providers, and some schools of thought, is that you want to really limit what is in the client’s actual progress notes and medical record, and what’s subject to disclosure in order to try to protect their privacy and the sensitivity of this information.

 

Liath Dalton 

However, the reality is that what must be within a medical record is also defined legally, right, what has to be in a designated record set. And you can’t exclude those items around progress and functional status evaluation. In part, because if the records do not contain that information, the ability for other providers to provide adequate care to that client are limited, and it can result in negative care outcomes.

 

Liath Dalton 

So while we absolutely understand the idea of wanting to protect clients sensitive information, and that is one of the primary things that we’re tasked with, we need to be precise about how that is applied. And be thinking of it also in the context of the client’s record, like their official record and medical record, is something that is used for their care by other providers sometimes in the present sometimes far, far in the future. But that is why it is a requirement that those records be complete and contain all of the necessary information and that they aren’t withheld from from release.

 

Liath Dalton 

So the contents of psychotherapy notes are really limited to the providers own processing and reflections around the their work with the client and can’t contain those those items that we just listed.

 

Liath Dalton 

One of the resources that we’re going to include in the show notes is an excellent article by the folks at JD Supra that kind of dives into an explication of psychotherapy notes versus progress notes, and they use the more useful term that I think conceptually helps us frame what psychotherapy notes are better, of process notes, right. And it’s just a must read in, in our view.

 

Liath Dalton 

And so we want to encourage everyone to make sure that they do have an accurate understanding of what psychotherapy notes are, and take the steps to check what their state law is, and that their Notice of Privacy Practices reflects that correctly.

 

Liath Dalton 

And then, as a group practice leader, it’s really important for your clinicians to all be informed of and aware of how this applies within your practice, right? We need to make sure that, for example, if you’re in a state where psychotherapy notes aren’t protected, that you don’t have clinicians that are keeping psychotherapy notes, and keeping them with the understanding that they are protected. Also need to make sure that clinicians, if you have a practice policy that it is acceptable to keep psychotherapy notes, that clinicians understand thoroughly what constitutes a psychotherapy note, and what doesn’t, so that they are current rectally, putting information into the progress notes that must be in the progress notes, and not putting information in psychotherapy notes, that renders psychotherapy notes not psychotherapy notes, and therefore not protected.

 

Liath Dalton 

And I also would advise that, if you were in a state that does have the protection for psychotherapy notes, that maybe you consult with a HIPAA and mental health attorney around the kind of risks and benefits of keeping psychotherapy notes. Because even in the event that psychotherapy notes are protected from a records release under HIPAA, they still are not protected from subpoena.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

And so a number of the attorneys that we collaborate with, take the position that the risks of maintaining psychotherapy notes outweigh the benefits.

 

Evan Dumas 

Yeah, mhm.

 

Liath Dalton 

We’re not saying that as a blanket statement, of course, but want everyone to make that a really intentional and careful consideration. So I would say, you know, kind of start start with reviewing the excellent article from from the folks at JD Supra that goes into more detail about what psychotherapy notes are and aren’t, and check what your state law is, and then make sure that you have a defined policy around psychotherapy notes, and that your clinical team is informed of that and understands all of this clearly, as well.

 

Evan Dumas 

Yeah, because a lot of folks – graduate programs, past jobs at group practices or solo private practices, don’t really cover how to do notes well. They cover how to do them fast, and how to get up to like some standards. But the separation between progress notes and psychotherapy notes has often been a sort of, oh, look at this, I have an easy out for having a whole separate system of notes. But, no, we weren’t really trained to write notes in a way that the clinician knows that the client would read later on.

 

Liath Dalton 

Right.

 

Evan Dumas 

It was like, this is very private. And so it’s, you know, it’s speaking a little to the separate issue of open access. But knowing that, hey, this might be in a release is a great time to have some training on like, what are good notes, and how do you do good notes, and what is the separation?

 

Liath Dalton 

Excellent point, Evan. And I appreciate your highlighting the fact that this isn’t something that is included in the graduate program, typically.

 

Evan Dumas 

Oh, no.

 

Liath Dalton 

And so what we’re talking about, there’s that misconception that we see being kind of prevalent, and that that that leads to, to challenges and raises concerns. That’s not out of any negligence or oversight of, of clinicians, or passing any judgment for that existing. It’s something that has been, I think, kind of perpetuated by the education programs actually, and just become kind of standard. But because it’s so standard and prevalent, and because it is so consequential, we want folks to have this on their radar, so that you can address it in a in a way that makes sense for your practice and your clinical team.

 

Liath Dalton 

And it’s also like Evan says, an opportunity to really support folks in being good at documenting. Like the documentation is part of the client’s care. It is not something that is separate from it, in the sense, like we were saying earlier, that the treatment record of the clients record is something that is going to very likely inform care that they receive from other providers, both potentially now and and in the future. So it is part of their care. And it’s important that the documentation be good in order to serve that need, and not like – good documentation isn’t important, just because of the insurance component and considerations around insurance audits and that sort of thing. So I think it’s useful to be considering documentation and what comprises good documentation from that sort of framing, of it been part of the client’s care.

 

Liath Dalton 

Oh yeah.

 

Liath Dalton 

That’s a lot more motivating to your clinicians,

 

Evan Dumas 

Yes exactly.

 

Liath Dalton 

than like insurance as we have to, so you know, just just do it this way.

 

Evan Dumas 

No way.

 

Liath Dalton 

So maybe that’s a way to lean into helping helping your team with good documentation and feeling, I mean, not enthused about it necessarily. We know it’s its most clinicians, sort of least favorite part of being a provider for many folks. But just sort of helping to figure out how to equip your team to feel like they’ve got a good handle on managing documentation and, and not feeling too overwhelmed by either.

 

Liath Dalton 

And there are a lot of great approaches for having good documentation and for having clients be in the in the context of rights of access and Open Notes, and so on. One approach of collaborative documentation is something that can be really successful, and has the added benefit for many providers to use that model of helping them stay on top of their documentation and not get behind and be efficient.

 

Liath Dalton 

So there are some great trainings that we have that also go into that by the wonderful documentation expert, Maelisa McCaffrey. So we’ll also put those those trainings which are great both for your leadership team and for clinicians themselves. We’ll put those in the show notes as well. So hopefully, this has been helpful. Thanks for listening, and we’ll talk to you next time.

 

Evan Dumas 

Yeah, talk to you next time, everybody.

 

Liath Dalton 

This has been Group Practice Tech, you can find us at PersonCenteredTech.com. For more podcast episodes, you can go to personcenteredtech.com/podcast or click podcast on the menu bar.