Use or Disclosure of Psychotherapy Notes
Statement of Policy
Washington University and its member organizations (collectively, “Washington University” or “WU”) are committed to conducting business in compliance with all applicable laws, regulations and WU policies. As part of this commitment, WU has adopted a policy to ensure that the WU Workforce who create, Use, or Disclose Psychotherapy Notes, as defined by HIPAA, are compliant with the HIPAA Privacy Regulations.
Scope of Policy
The scope of this Policy includes all Psychotherapy Notes created, Used or Disclosed by WU and carries with it the expectation that the clinician providers who create, Use or Disclose Psychotherapy Notes will take a prominent role in the application of this Policy.
Policy
1) Use or Disclosure of PHI with Authorization.
a) As a general rule, WU must obtain a valid, written Authorization for any Use or Disclosure of Psychotherapy Notes as defined by HIPAA. Psychotherapy Notes are 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.
b) The definition of 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. These are part of the psychiatric medical record and are subject to any restrictions that apply to Use or Disclosure of those records.
c) An Authorization is not required for the following:i) To carry out the following Treatment, Payment, or Health Care Operations:d) An Authorization to Use or Disclose Psychotherapy Notes must be written in plain language, and must contain all of the following elements: See Exhibit A.(A) Use by originator of the Psychotherapy Notes for Treatmentii) A Use or Disclosure that is required or permitted with respect to the oversight of the originator of the Psychotherapy Notes.
(B) Use or Disclosure by the Covered Entity in 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 a legal action or other proceeding brought by the Individual; andi) A specific and meaningful description of the information to be Used or Disclosed;e) An Authorization for any Use or Disclosure of Psychotherapy Notes, must be separate from any other Authorization except one authorizing Use or Disclosure of Psychotherapy Notes.
ii) The name or identification of the persons or class of persons authorized to make Disclosures of Protected Health Information (PHI) and to Use the PHI;
iii) The name or identification of the persons or class of persons authorized to receive Disclosures of the PHI and to Use the PHI;
iv) A description of each purpose of the Use or Disclosure;
v) An expiration date or event, or a statement, when appropriate;
vi) The Individual’s signature (or that of his/her authorized representative as determined by Missouri law) and date. (Note: If the Authorization is signed by an authorized representative, include a description of the representative’s authority under Missouri law to act for the Individual);
vii) A statement that the Individual may revoke the Authorization if done in writing to the Privacy Officer or Privacy Liaison of the Business Unit; except to the extent that Use or Disclosure of the PHI occurred pursuant to such Authorization before it was revoked.
viii) A statement that WU may not condition Treatment, Payment, enrollment or eligibility for benefits on whether the Individual signs the Authorization, if the Authorization is for Use or Disclosure of Psychotherapy Notes; but that an Individual may not participate in a clinical trial that includes Treatment unless there is a signed Authorization.
ix) A statement that information disclosed under the Authorization could potentially be redisclosed by the recipient and would no longer be protected under HIPAA.
f) The Individual must be provided with a copy of his/her signed Authorization.
2) Procedure for Signing an Authorization.
a) Adults
i) A competent adult Individual should always sign the Authorization to Use or Disclose his/her PHI. A person is competent if he/she has the general ability to understand the concept of release of his/her medical information;b) Authorization from Relatives. In those situations when the Individual is unconscious or unable to give his/her Authorization and does not have a court appointed guardian, the Individual’s relatives may provide Authorization. Missouri and Illinois law recognize the following order as “next of kin”, and this order should be followed whenever possible.
ii) If an Individual is competent, but unable to sign the Authorization, the person witnessing the form may write in “Patient unable to sign due to _________________. Patient gave verbal permission.” The Authorization must be witnessed.
iii) If the Individual is not conscious, is incoherent or is not competent for whatever reason, another person must sign the Authorization, before any non-emergency Use or Disclosure occurs.
i) Individual’s guardian of the person
ii) Spouse;
ii) Adult son or daughter;
ii) Either parent;
iii) Any adult grandchild of the patent
iv) Adult brother or sister; or
v) Relative by blood or marriage.c) Minors
If the Individual is under 18 and: is not pregnant; does not already have children; is not emancipated from his/her parents; and/or the Treatment at issue is not related to pregnancy, drug abuse, or venereal disease, then the minor’s parents (or other legal guardian or person standing in the place of the parents (i.e., grandparent or adult sibling)) may sign the Authorization on behalf of the minor Individual; orIf the Individual is under 18 and: is pregnant; has had a child; is emancipated from his/her parents; and/or the Treatment at issue is related to pregnancy, drug abuse, or venereal disease, then the minor may sign the Authorization on behalf of him/herself.
i) Any parent may sign for his minor child in his legal custody;
ii) Any minor who has been lawfully married and any minor parent or legal custodian of a child may sign for himself, his child and any child in his legal custody;
iii) Any minor may sign for himself in case of :
- Pregnancy, but excluding abortions;
- Venereal disease;
- Drug or substance abuse including those referred to in Chapter 195, RSMo;
iv) Any adult standing in loco parentis, whether serving formally or not, may sign for his minor charge in case of emergency as defined in section 431.063.i)
v) Any guardian of the person may sign for his ward;
vi) During the absence of a parent so authorized and empowered, any adult may sign for his minor brother or sister;
vii) During the absence of a parent so authorized and empowered, any grandparent for his minor grandchild;
viii) “Absence” as used in (v) and (vi) above shall mean absent at the time when further delay occasioned by an attempt to obtain consent may jeopardize the life, health or limb of the person affected, or may result in disfigurement or impairment of faculties.d) Individuals Under Court-Ordered Guardianship. If the individual has been appointed a guardian by the court, the guardian may sign the Authorization on behalf of the Individual. The Authorization must state the guardian’s authority or relationship to the Individual.
3) Individual’s Access to Psychotherapy Notes.
a) As a general rule, an Individual has a right to inspect or obtain a copy of their own PHI in a Designated Record Set. See the Glossary for a definition of the term Designated Record Set.
b) However, Individuals may be denied access to their PHI to the extent it consists of Psychotherapy Notes. Psychotherapy Notes includes 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.
c) The denial of access to Psychotherapy Notes is an unreviewable ground for denial. In other words, the denial is not appealable.
4) Accounting of Disclosures.
a) Subject to the exceptions listed below, an Individual must be provided with an accounting of all Disclosures of his/her PHI during the prior 6-year period, from and after April 14, 2003.
b) Exceptions to this accounting requirement include the following:i) Disclosures to the Individual;c) If Disclosures of Psychotherapy Notes are made without an Authorization and under circumstances other than those listed in 4 (b) (i)-(v), for example, a Disclosure for the public policy reason of law enforcement or the required by law reason of child abuse reporting, a record must be kept of all such Disclosures and the Individual has a right to an accounting of such Disclosures.
ii) Disclosures for purposes of Treatment, Payment or Health Care Operations;
iii) Disclosures made pursuant to an Authorization;
iv) Incidental Disclosures; and
v) Disclosures that are part of a Limited Data Set.
Creation Date: November 22, 2002
Effective Date: April 14, 2003
Last Revision Date: January 23, 2003
Authorization For the Use and Disclosure of
Psychotherapy Notes
Psychotherapy Notes are defined by federal law as those notes of a mental health provider documenting or analyzing conversations during a private counseling session or a group, joint, or family counseling session and that are kept separated from the rest of the medical record.
I authorize the use and/or disclosure of my psychotherapy notes as described below:
I certify that I have received a copy of the authorization.1. My authorization applies only to these psychotherapy notes (identify notes) ________________________________________________________________________________________________ ________________________________________________________________________________________________ _________________________________________________________________________________________________ 2. I authorize my mental health provider to use or disclose the psychotherapy notes identified above upon request for the following purposes (name and explain each purpose) __________________________________________________________________________________________________ ___________________________________________________________________________________________________ ____________________________________________________________________________________________________ 3. I understand that once my psychotherapy notes are used/disclosed pursuant to this authorization, they may no longer be protected by the privacy regulations and may be subject to redisclosure by the recipient(s).
4. I understand that I have the right to revoke this authorization at any time. My revocation must be
in writing as described in the Notice of Privacy Practices. I am aware that my revocation is not effective to the extent that I have authorized the use and/or disclosure of my protected health information and such use and/or disclosure has been relied upon by authorized recipients.
5. I understand that I do not have to sign this authorization and that my refusal to sign will not affect
my ability to obtain treatment from Washington University nor will it affect my eligibility for benefits.
6. I understand that unlike some other protected health information I do not have an unqualified right to inspect and copy my psychotherapy notes as is explained in the Notice of Privacy Practices.
7. This authorization expires 6 months from the date I sign this authorization.
_____________________________________ _____________________________
Signature Date
_____________________________________
Printed Name
_____________________________________ _______________________________
Name of Personal Representative &n Relationship to Individual
Individual unable to sign due to : __________________________________________________
Individual gave verbal permission.
_____________________________________ _______________________________
Witness Date