"Psychotherapy Notes" may Come Out From the Drawer

Currently, "psychotherapy notes" remains a very, very narrowly defined term under the Privacy Rule, and does not include general mental health information, including progress notes.  The exact definition is:

Psychotherapy notes means 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 [specifically] 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.  

See 45 CFR 164.501.  In the Preamble to the Privacy Rule, the government discusses that these are essentially the notes in the psychiatrist's drawer.

However, back in February 2009, the HITECH Act (H.R. 1) required that a study be completed to determine whether the definition of psychotherapy notes should include:

Test data that is related to direct responses, scores, items, forms, protocols, manuals, or other materials that are part of a mental health evaluation, as determined by the mental health professional providing treatment or evaluation in such definitions and may, based on such study, issue regulations to revise such definition.

see H.R. 1 Section 13424(f) on pg 165.  On October 7th, HHS and SAMSA (Substance Abuse and Mental Health Services Administration) will debate the topic of whether and to what extent the definition of "psychotherapy notes" should be expanded.  In addition to this potential expanded definition, the Proposed HITECH Rule would require that a statement be included in the NPP that disclosure of psychotherapy notes requires prior patient written authorization.  It may go without saying that if prior written authorization will be required before any mental health tests or other data is released, this will be a major shift in how such information currently flows between health care providers.