This page is a summary of the provisions regarding the subjects of
Jaffee v. Redmond and psychotherapy notes
in the document "Standards for Privacy of Individually Identifiable Health Information;
Final Rule" (Federal Register: December 28, 2000 (Volume 65, Number 250)]
[Rules and Regulations], [Page 82461-82510]. |
Actual excerpts of the Rule text are shown in RED. Emphases in the Rule text have been added. The column marked "#" shows the number of times the term "psychotherapy notes" appears on the indicated page. This table includes all instances of the term but in some cases it is necessary to refer to the full Preamble and Rule text to understand the intent of the quoted provisions.
Enforcement and interpretation of the Rule has been delegated to the HHS Office for Civil Rights
Prohibition on conditioning treatment, payment, enrollment in a health plan, or eligibility for benefits on an authorization. (Omission corrected 04/13/01.)
|Page||#||Location in Document||Summary and Rule Text|
|82464||0||Purpose of the Administrative Simplification Regulations: Need for a National Health Privacy Framework||"... there is ... significant intrusion when records reveal
details about a person's mental state ..."
The Importance of Privacy
[ ... ]
Individuals' right to privacy in information about themselves is not absolute. It does not, for instance, prevent reporting of public health information on communicable diseases or stop law enforcement from getting information when due process has been observed. But many people believe that individuals should have some right to control personal and sensitive information about themselves. Among different sorts of personal information, health information is among the most sensitive. Many people believe that details about their physical self should not generally be put on display for neighbors, employers, and government officials to see. Informed consent laws place limits on the ability of other persons to intrude physically on a person's body. Similar concerns apply to intrusions on information about the person.
Moving beyond these facts of physical treatment, there is also significant intrusion when records reveal details about a person's mental state, such as during treatment for mental health. If, in Justice Brandeis' words, the ``right to be let alone'' means anything, then it likely applies to having outsiders have access to one's intimate thoughts, words, and emotions. In the recent case of Jaffee v. Redmond, 116 S.Ct. 1923 (1996), the Supreme Court held that statements made to a therapist during a counseling session were protected against civil discovery under the Federal Rules of Evidence. The Court noted that all fifty states have adopted some form of the psychotherapist- patient privilege. In upholding the federal privilege, the Supreme Court stated that it ``serves the public interest by facilitating the appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.''
[ ... ]
|82497||5||Definitions||Definition is unchanged. Requirement for separation from medical
record is added to rule.
Section 164.508(a)(3)(iv)(A) of the proposed rule defined psychotherapy notes as 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. The proposed definition excluded 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. Furthermore, we stated in the preamble of the proposed rule that psychotherapy notes would have to be maintained separately from the medical record.
In this final rule, we retain the definition of psychotherapy notes that we had proposed, but add to the regulation text the requirement that, to meet the definition of psychotherapy notes, the information must be separated from the rest of the individual's medical record.
|82498||2||164.502 -- General Rule for use & disclosure.||Authorization is required for use or disclosure of psychotherapy
notes. Exceptions are in Sec. 164.502(a)(2).
[ ... ]
As a general rule, we proposed in the NPRM to prohibit covered entities from using or disclosing protected health information except as authorized by the individual who is the subject of such information or as explicitly permitted by the rule. The proposed rule explicitly would have permitted covered entities to use or disclose an individual's protected health information without authorization for treatment, payment, and health care operations.
[ ... ]
We proposed two exceptions to this general rule which prohibited covered entities from using or disclosing research information unrelated to treatment or psychotherapy notes for treatment, payment, or health care operations purposes unless a specific authorization was obtained from the subject of the information. In addition, we proposed that a covered entity be prohibited from conditioning treatment, enrollment in a health plan or payment decisions on a requirement that the individual provide a specific authorization for the disclosure of these two types of information (see proposed Sec. 164.508(a)(3)(iii)).
[ ... ]
We revise the application of the general standard to require covered health care providers who have a direct treatment relationship with an individual to obtain a general ``consent'' from the individual in order to use or disclose protected health information about the individual for treatment, payment and health care operations (for details on who must obtain such consents and the requirements they must meet, see Sec. 164.506). These consents are intended to accommodate both the covered provider's need to use or disclose protected health information for treatment, payment, and health care operations, and also the individual's interest in understanding and acquiescing to such uses and disclosures. In general, other covered entities are permitted to use and disclose protected health information to carry out treatment, payment, or health care operations (as defined in this rule) without obtaining such consent, as in the proposed rule. Covered entities must, as under the proposed rule, obtain the individual's ``authorization'' in order to use or disclose psychotherapy notes for most purposes: see Sec. 164.508(a)(2) for exceptions to this rule. We delete the proposed special treatment of ``research information unrelated to treatment.''
|82509||2||164.506 - Use and disclosure for Treatment, payment, and health care operations.||Final rule requires "consent" for use and disclosure of information
for treatment, payment, and health care operations.
Section 164.506--Uses and Disclosures for Treatment, Payment, and Health Care Operations
Introduction: ``Consent'' versus ``Authorization''
In the proposed rule, we used the term ``authorization'' to describe the individual's written permission for a covered entity to use and disclose protected health information, regardless of the purpose of the use or disclosure. Authorization would have been required for all uses and disclosures that were not otherwise permitted or required under the NPRM.
We proposed to permit covered entities, subject to limited exceptions for psychotherapy notes and research information unrelated to treatment, to use and disclose protected health information to carry out treatment, payment, and health care operations without authorization. See proposed Sec. 164.506(a)(1).
We also proposed to prohibit covered entities from requiring individuals to sign authorizations for uses and disclosures of protected health information for treatment, payment, and health care operations, unless required by other applicable law. See proposed Sec. 164.508(a)(iv). We instead proposed requiring covered entities to produce a notice describing their information practices, including practices with respect to uses and disclosures to carry out treatment, payment, and health care operations.
In the final rule, we retain the requirement for covered entities to obtain the individual's written permission (an ``authorization'') for uses and disclosures of protected health information that are not otherwise permitted or required under the rule. However, under the final rule, we add a second type of written permission for use or disclosure of protected health information: a ``consent'' for uses and disclosures to carry out treatment, payment, and health care operations. In the final rule, we permit, and in some cases require, covered entities to obtain the individual's written permission for the covered entity to use or disclose protected health information other than psychotherapy notes to carry out treatment, payment, and health care operations. We refer to this written permission as a ``consent.''
The ``consent'' and the ``authorization'' do not overlap. The requirement to obtain a ``consent'' applies in different circumstances than the requirement to obtain an authorization. In content, a consent and an authorization differ substantially from one another. As described in detail below, a ``consent'' allows use and disclosure of protected health information only for treatment, payment, and health care operations. It is written in general terms and refers the individual to the covered entity's notice for further information about the covered entity's privacy practices.
|82513||2||164.508 - Use and disclosures for which Authorization is Required.||Authorization is not required for use and disclosure for Treatment,
payment, and health care operations except for Psychotherapy
Section 164.508--Uses and Disclosures for Which an Authorization Is Required
We proposed to require covered entities to obtain the individual's authorization for all uses and disclosures of protected health information not otherwise permitted or required under the proposed rule. Uses and disclosures that would have been permitted without individual authorization included uses and disclosures for national priority purposes such as public health, law enforcement, and research (see proposed Sec. 164.510) and uses and disclosures of protected health information, other than psychotherapy notes and research information unrelated to treatment, for purposes of treatment, payment, and health care operations (see proposed Sec. 164.506). We also proposed to require covered entities to disclose protected health information to the individual for inspection and copying (see proposed Sec. 164.514) and to the Secretary as required for enforcement of the rule (see proposed Sec. 164.522). Individual authorization would not have been required for these uses and disclosures.
[ ... ]
In the final rule, under Sec. 164.508(a), as in the proposed rule, covered entities must have authorization from individuals before using or disclosing protected health information for any purpose not otherwise permitted or required by this rule. Specifically, except for psychotherapy notes (see below), covered entities are not required to obtain the individual's authorization to use or disclose protected health information to carry out treatment, payment, and health care operations. (Covered entities may, however, be required to obtain the individual's consent for these uses and disclosures. See the preamble regarding Sec. 164.506 for a discussion of ``consent'' versus ``authorization''.)
[ ... ]
|164.508, ctd. "Psychotherapy notes"||Authorization is required for most use and disclosure of
psychotherapy notes. Some uses require only "consent."
In the NPRM, we proposed different rules with respect to psychotherapy notes than we proposed with respect to all other protected health information. The proposed rule would have required covered entities to obtain an authorization for any use or disclosure of psychotherapy notes to carry out treatment, payment, or health care operations, unless the use was by the person who created the psychotherapy notes. With respect to all other protected health information, we proposed to prohibit covered entities from requiring authorization for uses and disclosures for these purposes.
We significantly revise our approach to psychotherapy notes in the final rule. With a few exceptions, covered entities must obtain the individual's authorization to use or disclose psychotherapy notes to carry out treatment, payment, or health care operations. A covered entity must obtain the individual's consent, but not an authorization, for the person who created the psychotherapy notes to use the notes to carry out treatment and for the covered entity to use or disclose psychotherapy notes for conducting 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. A covered entity may also use psychotherapy notes to defend a legal action or other proceeding brought by the individual pursuant to a consent, without a specific authorization. We note that, while this provision allows disclosure of these records to the covered entity's attorney to defend against the action or proceeding, disclosure to others in the course of a judicial or administrative proceeding is governed by Sec. 164.512(e). This special provision is necessary because disclosure of protected health information for purposes of legal representatives may be made under the general consent as part of ``health care operations.'' Because we require an authorization for disclosure of psychotherapy notes for ``health care operations,'' an exception is needed to allow covered entities to use protected health information about an individual to defend themselves against an action threatened or brought by that individual without asking that individual for authorization to do so. Otherwise, a consent under Sec. 164.506 is not sufficient for the use or disclosure of psychotherapy notes to carry out treatment, payment, or health care operations. Authorization is required. We anticipate these authorizations will rarely be necessary, since psychotherapy notes do not include information that covered entities typically need for treatment, payment, or other types of health care operations.
In the NPRM, we proposed to permit covered entities to use and disclose psychotherapy notes for all other purposes permitted or required under the rule without authorization. In the final rule, we specify a more limited set of uses and disclosures of psychotherapy notes that covered entities are permitted to make without authorization. An authorization is not required for use or disclosure of psychotherapy notes when required for enforcement purposes, in accordance with subpart C of part 160 of this subchapter; when mandated by law, in accordance with Sec. 164.512(a); when needed for oversight of the health care provider who created the psychotherapy notes, in accordance with Sec. 164.512(d); when needed by a coroner or medical examiner, in accordance with Sec. 164.512(g)(1); or when needed to avert a serious and imminent threat to health or safety, in accordance with Sec. 164.512(j)(1)(i). We also provide transition provisions in Sec. 164.532 regarding the effect of express legal permission obtained from an individual prior to the compliance date of this rule.
|82516||8||164.508, compound authorizations||Rules on combining authorization for Use and disclosure of
Psychotherapy notes with other authorizations.
We clarify the prohibition on compound authorizations in the final rule. Other than as described below, Sec. 164.508(b)(3) prohibits a covered entity from acting on an authorization required under this rule that is combined with any other document, including any other written legal permission from the individual.
[ ... ]
There are three exceptions to this prohibition. First, under Sec. 164.508(f) (described in more detail, below), an authorization for the use or disclosure of protected health information created for research that includes treatment of the individual may be combined with a consent for the use or disclosure of that protected health information to carry out treatment, payment, or health care operations under Sec. 164.506 and with other documents as provided in Sec. 164.508(f). Second, authorizations for the use or disclosure of psychotherapy notes for multiple purposes may be combined in a single document, but may not be combined with authorizations for the use or disclosure of other protected health information. Third, authorizations for the use or disclosure of protected health information other than psychotherapy notes may be combined, provided that the covered entity has not conditioned the provision of treatment, payment, enrollment, or eligibility on obtaining the authorization. If a covered entity conditions any of these services on obtaining an authorization from the individual, as permitted in Sec. 164.508(b)(4) and described below, the covered entity must not combine the authorization with any other document.
|82520||1||164.508(f) - Research||Rule on combining authorizations, special limitation for
Section 164.508(f)--Authorizations for Uses and Disclosures of Protected Health Information Created for Research that Includes Treatment of Individuals
[ ... ]
Research that involves the delivery of treatment to participants sometimes relies on existing health information, such as to determine eligibility for the trial. We note that under Sec. 164.508(b)(3)(iii), the covered entity may combine the research-related authorization required under Sec. 164.508(f) with any other authorization for the use or disclosure of protected health information (other than psychotherapy notes), provided that the covered entity does not condition the provision of treatment on the individual signing the authorization.
[ ... ]
|82534||1||164.512(g) - Uses and Disclosures for Which Consent, an Authorization, or Opportunity To Agree or Object Is Not Required||Disclosure of Psychotherapy notes to coroners and medical
examiners allowed for determining cause of death.
Section 164.512(g)--Uses and Disclosures About Decedents
[ ... ]
Section 164.512(g) allows covered entities to disclose protected health information to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to a decedent. For example, the rule allows hospitals to disclose to funeral directors the fact that an individual has donated an organ or tissue, because this information has implications for funeral home staff duties associated with embalming. When necessary for funeral directors to carry out their duties, covered entities may disclose protected health information prior to and in reasonable anticipation of the individual's death.
Whereas the NPRM did not address the issue of disclosure of psychotherapy notes without individual authorization to coroners and medical examiners, the final rule allows such disclosures.
|82554||2||Sec.164.524 -- Access of Individuals to Protected Health Information||Patients do not have right to access Psychotherapy notes.
Section 164.524--Access of Individuals to Protected Health Information
Section 164.524(a)--Right of Access
In the NPRM, we proposed to establish a right for individuals to access (i.e., inspect and obtain a copy of) protected health information about them maintained by a covered provider or health plan, or its business partners, in a designated record set.
As in the proposed rule, in the final rule we provide that individuals have a right of access to protected health information that is maintained in a designated record set. This right applies to health plans, covered health care providers, [ ... ]
[ ... ]
Exceptions to the Right of Access
In the NPRM, we proposed to establish a right for individuals to access any protected health information maintained in a designated record set. Though we proposed to permit covered entities to deny access in certain situations relating to the particular individual requesting access, we did not specifically exclude any protected health information from the right of access.
In the final rule, we specify three types of information to which individuals do not have a right of access, even if the information is maintained in a designated record set. They are psychotherapy notes, information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding, and certain protected health information maintained by a covered entity that is subject to or exempted from the Clinical Laboratory Improvements Amendments of 1988 (CLIA). Covered entities may, but are not required to, provide access to this information.
First, unlike the proposed rule, we specify that individuals do not have a right of access to psychotherapy notes[ ... ]
|Comments Received on Draft Rule (NPRM) and HHS Replies|
|Page||#||Location in Document||Summary and Rule Text|
|82596||0||Relationship to Other Federal Laws: Federal Rules of Evidence||The Rule Supports the Supreme Court Ruling in Jaffee v. Redmond
Federal Rules of Evidence
Comment: Many comments requested clarification that the privacy regulation does not conflict or interfere with the federal or state privileges. In particular, one of these comments suggested that the final regulation provide that disclosures for a purpose recognized by the regulation not constitute a waiver of federal or state privileges.
Response: We do not intend for the privacy regulation to interfere with federal or state rules of evidence that create privileges. Consistent with The Uniform Health-Care Information Act drafted by the National Conference of Commissioners on Uniform State Laws, we do not view a consent or an authorization to function as a waiver of federal or state privileges. For further discussion of the effect of consent or authorization on federal or state privileges, see preamble discussions in Secs. 164.506 and 164.508.
Comment: Other comments applauded the Secretary's references to Jaffee v. Redman[sic], 518 U.S. 1 (1996), which recognized a psychotherapist-patient privilege, and asked the Secretary to incorporate expressly this privilege into the final regulation.
Response: We agree that the psychotherapist-patient relationship is an important one that deserves protection. However, it is beyond the scope our mandate to create specific evidentiary privileges. It is also unnecessary because the United States Supreme Court has adopted this privilege.
|82598||4||Relationship to other Federal Laws: Medicare and Medicaid.|| Rule does not allow disclosure of Psychotherapy notes to
Medicare unless such disclosure is required by
the Medicare law.
Comment: One commenter stated that Medicare should not be able to require the disclosure of psychotherapy notes because it would destroy a practitioner's ability to treat patients effectively.
Response: If the Title XVIII of the Social Security Act requires the disclosure of psychotherapy notes, the final rule permits, but does not require, a covered entity to make such a disclosure under Sec. 164.512(a). If, however, the Social Security Act does not require such disclosures, Medicare does not have the discretion to require the disclosure of psychotherapy notes as a public policy matter because the final rule provides that covered entities, with limited exceptions, must obtain an individual's authorization before disclosing psychotherapy notes. See Sec. 164.508(a)(2).
|82600||1||160(C) - Compliance and Enforcement.||Psychotherapy notes used as an example of a possible illegal
disclosure which could lead to a complaint.
Part 160, Subpart C--Compliance and Enforcement
Section 160.306(a)--Who Can File Complaints With the Secretary
Comment: The proposed rule limited those who could file a complaint with the Secretary to individuals. A number of commenters suggested that other persons with knowledge of a possible violation should also be able to file complaints. Examples that were provided included a mental health care provider with first hand knowledge of a health plan improperly requiring disclosure of psychotherapy notes and an occupational health nurse with knowledge that her human resources manager is improperly reviewing medical records. A few comments raised the concern that permitting any person to file a complaint lends itself to abuse and is not necessary to ensure privacy rights and that the complainant should be a person for whom there is a duty to protect health information.
Response: [ ... ]
|82604||5||Compliance and Enforcement.||Sensitive information may actually be disclosed by the act of
filing complaints. Concerns about psychotherapy notes.
Comment: One commenter expressed concern that by filing a complaint an individual would be required to reveal sensitive information to the public. Another commenter suggested that complaints regarding noncompliance in regard to psychotherapy notes should be made to a panel of mental health professionals designated by the Secretary. This commenter also proposed that all patient information be maintained as privileged, not be revealed to the public, and be kept under seal after the case is reviewed and closed.
Response: We appreciate this concern and will seek to ensure that individually identifiable health information and other personal information contained in complaints will not be available to the public. The privacy regulation provides, at Sec. 160.310(c)(3), that protected health information obtained by the Secretary in connection with an investigation or compliance review will not be disclosed except if necessary for ascertaining or enforcing compliance with the regulation or if required by law. In addition, this Department generally seeks to protect the privacy of individuals to the fullest extent possible, while permitting the exchange of records required to fulfill its administrative and program responsibilities. The Freedom of Information Act, 5 U.S.C. 552, and the HHS implementing regulation, 45 CFR part 5, provide substantial protection for records about individuals where disclosure would constitute an unwarranted invasion of their personal privacy. In implementing the privacy regulation, OCR plans to continue its current practice of protecting its complaint files from disclosure. OCR treats these files as investigatory records compiled for law enforcement purposes. Moreover, OCR maintains that disclosing protected health information in these files generally constitutes an unwarranted invasion of personal privacy.
It is not clear in regarding the use of mental health professionals, whether the commenter believes that such professionals should be involved because they would be best able to keep psychotherapy notes confidential or because such professionals can best understand the meaning or relevance of such notes. OCR anticipates that it will not have to obtain a copy or review psychotherapy notes in investigating most complaints regarding noncompliance in regard to such notes. There may be some cases where a review of the notes may be needed such as where we need to identify that the information a covered entity disclosed was in fact psychotherapy notes. If we need to obtain a copy of psychotherapy notes, we will keep these notes confidential and secure. OCR investigative staff will be trained to ensure that they fully respect the confidentiality of personal information. In addition, while the specific contents of these notes is generally not relevant to violations under this rule, if such notes are relevant, we will secure the expertise of mental health professionals if needed in reviewing psychotherapy notes.
|82618||2||Definitions: "payment"||Reaffirms that Psychotherapy notes should not be disclosed
without authorization for payment purposes.
Comment: Several commenters recommended prohibiting disclosure of psychotherapy notes under this provision and under all of the sections governing disclosure without consent for national priority purposes.
Response: We agree that psychotherapy notes should not be disclosed without authorization for payment purposes, and the final rule does not allow such disclosure. See the discussion under Sec. 164.508.
|Definitions: psychotherapy notes||Replies to comments about the definition. Definition is
unchanged from draft. Will not remove the word "counseling."
Equates Psychotherapy notes with "process notes."
Comment: Some commenters thought the definition of psychotherapy notes was contrary to standard practice. They claimed that reports of psychotherapy are typically part of the medical record and that psychologists are advised, for ethical reasons and liability risk management purposes, not to keep two separate sets of notes. Others acknowledged that therapists may maintain separate notations of therapy sessions for their own purpose. These commenters asked that we make clear that psychotherapy notes, at least in summary form, should be included in the medical record. Many plans and providers expressed concern that the proposed definition would encourage the creation of ``shadow'' records which may be dangerous to the patient and may increase liability for the health care providers. Some commenters claimed that psychotherapy notes contain information that is often essential to treatment.
Response: We conducted fact-finding with providers and other knowledgeable parties to determine the standard practice of psychotherapists and determined that only some psychotherapists keep separate files with notes pertaining to psychotherapy sessions. These notes are often referred to as ``process notes,'' distinguishable from ``progress notes,'' ``the medical record,'' or ``official records.'' These process notes capture the therapist's
impressions about the patient, contain details of the psychotherapy conversation considered to be inappropriate for the medical record, and are used by the provider for future sessions. We were told that process notes are often kept separate to limit access, even in an electronic record system, because they contain sensitive information relevant to no one other than the treating provider. These separate ``process notes'' are what we are calling ``psychotherapy notes.'' Summary information, such as the current state of the patient, symptoms, summary of the theme of the psychotherapy session, diagnoses, medications prescribed, side effects, and any other information necessary for treatment or payment, is always placed in the patient's medical record. Information from the medical record is routinely sent to insurers for payment.
Comment: Various associations and their constituents asked that the exceptions for psychotherapy notes be extended to health care information from other health care providers. These commenters argued that psychotherapists are not the only providers or even the most likely providers to discuss sensitive and potentially embarrassing issues, as treatment and counseling for mental health conditions, drug abuse, HIV/AIDS, and sexual problems are often provided outside of the traditional psychiatric settings. One writer stated, ``A prudent health care provider will always assess the past and present psychiatric medical history and symptoms of a patient.''
Many commenters believed that the psychotherapy notes should include frequencies of treatment, results of clinical tests, and summary of diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date. They claimed that this information is highly sensitive and should not be released without the individual's written consent, except in cases of emergency. One commenter suggested listing the types of mental health information that can be requested by third party payors to make payment determinations and defining the meaning of each term.
Response: As discussed above and in the NPRM, the rationale for providing special protection for psychotherapy notes is not only that they contain particularly sensitive information, but also that they are the personal notes of the therapist, intended to help him or her recall the therapy discussion and are of little or no use to others not involved in the therapy. Information in these notes is not intended to communicate to, or even be seen by, persons other than the therapist. Although all psychotherapy information may be considered sensitive, we have limited the definition of psychotherapy notes to only that information that is kept separate by the provider for his or her own purposes. It does not refer to the medical record and other sources of information that would normally be disclosed for treatment, payment, and health care operations.
Comment: One commenter was particularly concerned that the use of the term ``counseling'' in the definition of psychotherapy notes would lead to confusion because counseling and psychotherapy are different disciplines.
Response: In the final rule, we continue to use the term ``counseling'' in the definition of ``psychotherapy.'' During our fact- finding, we learned that ``counseling'' had no commonly agreed upon definition, but seemed to be widely understood in practice. We do not intend to limit the practice of psychotherapy to any specific professional disciplines.
Comment: One commenter noted that the public mental health system is increasingly being called upon to integrate and coordinate services among other providers of mental health services and they have developed an integrated electronic medical record system for state-operated hospitals, part of which includes psychotherapy notes, and which cannot be easily modified to provide different levels of confidentiality. Another commenter recommended allowing use or disclosure of psychotherapy notes by members of an integrated health care facility as well as the originator.
Response: The final rule makes it clear that any notes that are routinely shared with others, whether as part of the medical record or otherwise, are, by definition, not psychotherapy notes, as we have defined them. To qualify for the definition and the increased protection, the notes must be created and maintained for the use of the provider who created them i.e., the originator, and must not be the only source of any information that would be critical for the treatment of the patient or for getting payment for the treatment. The types of notes described in the comment would not meet our definition for psychotherapy notes.
Comment: Many providers expressed concern that if psychotherapy notes were maintained separately from other protected health information, other health providers involved in the individual's care would be unable to treat the patient properly. Some recommended that if the patient does not consent to sharing of psychotherapy notes for treatment purposes, the treating provider should be allowed to decline to treat the patient, providing a referral to another provider.
Response: The final rule retains the policy that psychotherapy notes be separated from the remainder of the medical record in order to receive additional protection. We based this decision on conversations with mental health providers who have told us that information that is critical to the treatment of individuals is normally maintained in the medical record and that psychotherapy notes are used by the provider who created them and rarely for other purposes. A strong part of the rationale for the special treatment of psychotherapy notes is that they are the personal notes of the treating provider and are of little or no use to others who were not present at the session to which the notes refer.
Comment: Several commenters requested that we clarify that the information contained in psychotherapy notes is being protected under the rule and not the notes themselves. They were concerned that the protection for psychotherapy notes would not be meaningful if health plans could demand the same information in a different format.
Response: This rule provides special protection for the information in psychotherapy notes, but it does not extend that protection to the same information that may be found in other locations. We do not require the notes to be in a particular format, such as hand-written. They may be typed into a word processor, for example. Copying the notes into a different format, per se, would not allow the information to be accessed by a health plan. However, the requirement that psychotherapy notes be kept separate from the medical record and solely for the use of the provider who created them means that the special protection does not apply to the same information in another location.
|82631||1||Sec.164.502(f) - Deceased persons.||A few comments suggested that information in Psychotherapy
notes about a deceased person be protected indefinitely. Final rule
extends indefinite protection to all protected information.
Section 164.502(f)--Deceased Individuals Comment: Most commenters on this topic generally did not approve of the Secretary's proposal with regard to protected health information about deceased individuals. The majority of these commenters argued that our proposal was not sufficiently protective of such information.
[ ... ]
The majority of commenters who supported increased protections on the protected health information about the deceased asked that we extend protections on such information indefinitely or for as long as the covered entity maintains the information. It was also argued that the administrative burden of perpetual protection would be no more burdensome than it is now as current practice is that the confidentiality of identifiable patient information continues after death.
[ ... ]
[ ... ] A few commenters asked that we provide indefinite protection on the protected health information about a deceased person contained in psychotherapy notes. [ ... ]
[ ... ]
Response: We find the arguments raised by these commenters persuasive. We have reconsidered our position and believe these arguments for maintaining privacy on protected health information without temporal limitations outweigh any administrative burdens associated with maintaining such protections. As such, in the final rule we revise our policy to extend protections on the protected health information about a deceased individual to remain in effect for as long as the covered entity maintains the information. [ ... ]
|Sec. 164.508--Uses and Disclosures for Which Authorization Is Required: Psychotherapy notes.||Special protection is based on Jaffee v. Redmond. "We do not intend to alter the holding in Jaffee v. Redmond." Psychotherapy notes are defined to exclude "information a health plan would require to process a claim." Psychotherapy notes information cannot be shared with a treatment team. (Much more. Text Below.)|
|82657||1||Sec 164.508 - Authorizations||Authorizations for Use and disclosure of Psychotherapy notes
cannot be combined with other authorizations.
Comment: Many commenters raised concerns about the specificity of the authorization requirement. Some comments recommended that we permit covered entities to include multiple uses and disclosures in a single authorization and allow individuals to authorize or not authorize specific uses and disclosures in the authorization. Other commenters asked whether a single authorization is sufficient for multiple uses or disclosures for the same purpose, for multiple uses and disclosures for related purposes, and for uses and disclosures of different types of information for the same purpose. Some comments from health care providers noted that specific authorizations would aid their compliance with requests.
Response: As a general rule, we prohibit covered entities from combining an authorization for the use or disclosure of protected health information with any other document. For example, an authorization may not be combined with a consent to receive treatment or a consent to assign payment of benefits to a provider. We intend the authorizations required under this rule to be voluntary for individuals, and, therefore, they need to be separate from other forms of consent that may be a condition of treatment or payment or that may otherwise be coerced.
We do, however, permit covered entities to combine authorizations for uses and disclosures for multiple purposes into a single authorization. The only limitations are that an authorization for the use or disclosure of psychotherapy notes may not be combined with an authorization for the use or disclosure of other types of protected health information and that an authorization that is a condition of treatment, payment, enrollment, or eligibility may not be combined with any other authorization.
|82658||3||Sec 164.508 - Prohibition on conditioning Treatment, Payment, Eligibility, or Enrollment.||Treatment, Payment, Eligibility, or Enrollment cannot be
conditioned on an authorization for Use and disclosure of
Prohibition on Conditioning Treatment, Payment, Eligibility, or Enrollment
Comment: Many commenters supported the NPRM's prohibition of covered entities from conditioning treatment or payment on the individual's authorization of uses and disclosures. Some commenters requested clarification that employment can be conditioned on an authorization. Some commenters recommended that we eliminate the requirement for covered entities to state on the authorization form that the authorization is not a condition of treatment or payment. Some commenters suggested that we prohibit the provision of anything of value, including employment, from being conditioned on receipt of an authorization.
In addition, many commenters argued that patients should not be coerced into signing authorizations for a wide variety of purposes as a condition of obtaining insurance coverage. Some health plans, however, requested clarification that health plan enrollment and eligibility can be conditioned on an authorization.
Response: We proposed to prohibit covered entities from conditioning treatment, payment, or enrollment in a health plan on an authorization for the use or disclosure of psychotherapy notes (see proposed Sec. 164.508(a)(3)(iii)). We proposed to prohibit covered entities from conditioning treatment or payment on authorization for the use or disclosure of any other protected health information (see proposed Sec. 164.508(a)(2)(iii)).
We resolve this inconsistency by clarifying in Sec. 164.508(b)(4) that, with certain exceptions, a covered entity may not condition the provision of treatment, payment, enrollment in a health plan, or eligibility for benefits on an authorization for the use or disclosure of any protected health information, including psychotherapy notes. We intend to minimize the potential for covered entities to coerce individuals into signing authorizations for the use or disclosure of protected health information when such information is not essential to carrying out the relationship between the individual and the covered entity.
Pursuant to that goal, we have created limited exceptions to the prohibition. First, a covered health care provider may condition research-related treatment of an individual on obtaining the individual's authorization to use or disclose protected health information created for the research. Second, except with respect to psychotherapy notes, a health plan may condition the individual's enrollment or eligibility in the health plan on obtaining an authorization for the use or disclosure of protected health information for making enrollment or eligibility determinations relating to the individual or for its underwriting or risk rating determinations. Third, a health plan may condition payment of a claim for specified benefits on obtaining an authorization under Sec. 164.508(e) for disclosure to the plan of protected health information necessary to determine payment of the claim. Fourth, a covered entity may condition the provision of health care that is solely for the purpose of creating protected health information for disclosure to a third party (such as fitness-for-duty exams and physicals necessary to obtain life insurance coverage) on obtaining an authorization for the disclosure of the protected health information. We recognize that covered entities need protected health information in order to carry out these functions and provide services to the individual; therefore, we allow authorization for the disclosure of the protected health information to be a condition of obtaining the services.
We believe that we have prohibited covered entities from conditioning the services they provide to individuals on obtaining an authorization for uses and disclosures that are not essential to those services. Due to our limited authority, however, we cannot entirely prevent individuals from being coerced into signing these forms. We do not, for example, have the authority to prohibit an employer from requiring its employees to sign an authorization as a condition of employment. Similarly, a program such as the Job Corps may make such an authorization a condition of enrollment in the Job Corps program. While the Job Corps may include a health care component, the non-covered component of the Job Corps may require as a condition of enrollment that the individual authorize the health care component to disclose protected health information to the non-covered component. See Sec. 164.504(b). However, we note that other nondiscrimination laws may limit the ability to condition these authorizations as well.
|82665||4||Sec. 164.510(b)--Uses and Disclosures for Involvement in the Individual's Care and Notification Purposes||Written authorization is required for disclosure pf Psychotherapy
notes information to family or close personal friends.
Comments: A number of commenters supported the proposal to limit disclosures to family or friends to the protected health information that is directly relevant to that person's involvement in the individual's health care. Some comments suggested that this standard apply to all disclosures to family or friends, even when the individual has agreed to or not objected to the disclosure. One commenter objected to the proposal, stating that it would be too difficult to administer. According to this comment, it is accepted practice for health care providers to communicate with family and friends about an individual's condition, regardless of whether the person is responsible for or otherwise involved in the individual's care.
Other comments expressed concern for disclosures related to particular types of information. For example, two commenters recommended that psychotherapy notes not be disclosed without patient authorization. One commenter suggested that certain sensitive medical information associated with social stigma not be disclosed to family members or others without patient consent.
Response: We agree with commenters who advocated limiting permissible disclosures to relatives and close personal friends to information consistent with a person's involvement in the individual's care. Under the final rule, we clarify the NPRM provision to state that covered entities may disclose protected health information to family members, relatives, or close personal friends of an individual or any other person identified by the individual, to the extent that the information directly relates to the person's involvement in the individual's current health care. It is not intended to allow disclosure of past medical history that is not relevant to the individual's current condition. In addition, as discussed above, we do not intend to disrupt covered entities' current practices with respect to disclosing specific information about a patient's condition to family members or others when the individual is incapacitated due to a medical emergency and the family member or other individual comes to the covered entity seeking specific information about the patient's condition. For example, this section allows a hospital to disclose to a family member the fact that a patient had a heart attack, and to provide updated information to the family member about the patient's progress and prognosis during his or her period of incapacity.
We agree with the recommendation to require written authorization for a disclosure of psychotherapy notes to family, close personal friends, or others involved in the individual's care. As discussed below, the final rule allows disclosure of psychotherapy notes without authorization in a few limited circumstances; disclosure to individuals involved in a person's care is not among those circumstances. See Sec. 164.508 for a further discussion of the final rule's provisions regarding disclosure of psychotherapy notes.
We do not agree, however, with the suggestion to treat some medical information as more sensitive than others. In most cases, individuals will have the opportunity to prohibit or limit such disclosures. For situations in which an individual is unable to do so, covered entities may, in the exercise of professional judgement, determine whether the disclosure is in the individual's best interests and, if so, disclose only the protected health information that is directly relevant to the person's involvement with the individual's health care.
|82688||4||Sec. 164.512(g) - Uses and Disclosures About Decedents : Coroners and Medical Examiners.||Psychotherapy notes information MAY be disclosed to Coroners
and Medical Examiners without authorization for purpose of
determining cause of death.
[ ... ]
Comment: One commenter recommended prohibiting health plans and covered health care providers from disclosing psychotherapy notes to coroners or medical examiners.
Response: We disagree with the commenter who asserted that psychotherapy notes should only be used by or disclosed to coroners and medical examiners with authorization. Psychotherapy notes are sometimes needed by coroners and medical examiners to determine cause of death, such as in cases where suicide is suspected as the cause of death. We understand that several states require the disclosure of protected health information, including psychotherapy notes, to medical examiners and coroners. However, in the absence of a state law requiring such disclosure, we do not intend to prohibit coroners or medical examiners from obtaining the protected health information necessary to determine an individual's cause of death.
|82731||2||Sec. 164.522(b) - Confidential Communications Requirements : Sensitive Subjects||Most information about "sensitive" subjects is not given special
protection by the rule. The only information given special
protection is Psychotherapy notes information.
Comment: Many commenters requested that additional protections be placed on sensitive information, including information regarding HIV/ AIDS, sexually transmitted diseases, mental health, substance abuse, reproductive health, and genetics. Many requested that we ensure the regulation adequately protects victims of domestic violence. They asserted that the concern for discrimination or stigma resulting from disclosure of sensitive health information could dissuade a person from seeking needed treatment. Some commenters noted that many state laws provide additional protections for various types of information. They requested that we develop federal standards to have consistent rules regarding the protection of sensitive information to achieve the goals of cost savings and patient protection. Others requested that we require patient consent or special authorization before certain types of sensitive information was disclosed, even for treatment, payment, and health care operations, and some thought we should require a separate request for each disclosure. Some commenters requested that the right to request restrictions be replaced with a requirement for an authorization for specific types of sensitive information. There were recommendations that we require covered entities to develop internal policies to address sensitive information.
Other commenters argued that sensitive information should not be segregated from the record because it may limit a future provider's access to information necessary for treatment of the individual and it could further stigmatize a patient by labeling him or her as someone with sensitive health care issues. These commenters further maintained that segregation of particular types of information could negatively affect analysis of community needs, research, and would lead to higher costs of health care delivery.
Response: We generally do not differentiate among types of protected health information, because all health information is sensitive. The level of sensitivity varies not only with the type of information, but also with the individual and the particular situation faced by the individual. This is demonstrated by the different types of information that commenters singled out as meriting special protection, and in the great variation among state laws in defining and protecting sensitive information. Most states have a law providing heightened protection for some type of health information. However, even though most states have considered the issue of sensitive information, the variation among states in the type of information that is specially protected and the requirements for permissible disclosure of such information demonstrates that there is no national consensus.
Where, as in this case, most states have acted and there is no predominant rule that emerges from the state experience with this issue, we have decided to let state law predominate. The final rule only provides a floor of protection for health information and does not preempt state laws that provide greater protection than the rule. Where states have decided to treat certain information as more sensitive than other information, we do not preempt those laws.
To address the variation in the sensitivity of protected health information without defining specially sensitive information, we incorporate opportunities for individuals and covered entities to address specific sensitivities and concerns about uses and disclosures of certain protected health information that the patient and provider believe are particularly sensitive, as follows:
Covered entities are required to provide individuals with notice of their privacy practices and give individuals the opportunity to request restrictions of the use and disclosure of protected health information by the covered entity. (See Sec. 164.522(a) regarding right to request restrictions.)
Individuals have the right to request, and in some cases require, that communications from the covered entity to them be made to an alternative address or by an alternative means than the covered entity would otherwise use. (See Sec. 164.522(b) regarding confidential communications.)
Covered entities have the opportunity to decide not to treat a person as a personal representative when the covered entity has a reasonable belief that an individual has been subjected to domestic violence, abuse, or neglect by such person or that treating such person as a personal representative could endanger the individual. (See Sec. 164.502(g)(5) regarding personal representatives.)
Covered entities may deny access to protected health information when there are concerns that the access may result in varying levels of harm. (See Sec. 164.524(a)(3) regarding denial of access.)
Covered health care providers may, in some circumstances and consistent with any known prior preferences of the individual, exercise professional judgment in the individual's best interest to not disclose directory information. (See Sec. 164.510(a) regarding directory information.)
Covered entities may, in some circumstances, exercise professional judgment in the individual's best interest to limit disclosure to persons assisting in the individual's care. (See Sec. 164.510(b) regarding persons assisting in the individual's care.)
This approach allows for state law and personal variation in this area.
The only type of protected health information that we treat with heightened protection is psychotherapy notes. We provide a different level of protection because they are unique types of protected health information that typically are not used or required for treatment, payment, or health care operations other than by the mental health professional that created the notes. (See Sec. 164.508(a)(2) regarding psychotherapy notes.)
|82733||2||Sec. 164.524 - Access of Individuals to Protected Health Information||Providers are not required to allow patients to access
Comment: Many commenters supported our proposal to allow covered entities to deny an individual access to protected health information if a professional determines either that such access is likely to endanger the life or physical safety of a person or, if the information is about another person, access is reasonably likely to cause substantial harm to such person.
Some commenters requested that the rule also permit covered entities to deny a request if access might be reasonably likely to cause psychological or mental harm, or emotional distress. Other commenters, however, were particularly concerned about access to mental health information, stating that the lack of access creates resentment and distrust in patients.
Response: We disagree with the comments suggesting that we expand the grounds for denial of access to an individual to include a likelihood of psychological or mental harm of the individual. We did not find persuasive evidence that this is a problem sufficient to outweigh the reasons for providing open access. We do allow a denial for access based on a likelihood of substantial psychological or mental harm, but only if the protected health information includes information about another person and the harm may be inflicted on such other person or if the person requesting the access is a personal representative of the individual and the harm may be inflicted on the individual or another person.
We generally agree with the commenters concerns that denying access specifically to mental health records could create distrust. To balance this concern with other commenters' concerns about the potential for psychological harm, however, we exclude psychotherapy notes from the right of access. This is the only distinction we make between mental health information and other types of protected health information in the access provisions of this rule. Unlike other types of protected health information, these notes are not widely disseminated through the health care system. We believe that the individual's privacy interests in having access to these notes, therefore, are outweighed by the potential harm caused by such access. We encourage covered entities that maintain psychotherapy notes, however, to provide individuals access to these notes when they believe it is appropriate to do so.
|82772||1||Impact analysis (costs) - authorizations.||No additional cost is associated with obtaining authorizations for
disclosure of Psychotherapy notes for most purposes since this is
[ ... ]
To use or disclose psychotherapy notes for most purposes (including for treatment, payment, or health care operations), a covered entity must obtain specific authorization by the individual that is distinct from any authorization for use and disclosure of other protected health information. This is current practice, so there is no new cost associated with this provision.
|Page||#||Location in Document||Summary and Rule Text|
|82805||2||Sec. 164.501 - Definitions||Definition of Psychotherapy notes.
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 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.
|82811||9||Sec. 164.508 - Use and disclosure for which an Authorization is required.||Specific rules for authorizations and special limits on disclosure of
Psychotherapy notes. Also Authorization for Use and disclosure
of Psychotherapy notes may not be required for enrollment,
treatment or payment.
Sec. 164.508 Uses and disclosures for which an authorization is required.
(a) Standard: Authorizations for uses and disclosures.
(1) Authorization required: General rule. Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.
(2) Authorization required: psychotherapy notes. Notwithstanding any other provision of this subpart, other than transition provisions provided for in Sec. 164.532, a covered entity must obtain an authorization for any use or disclosure of psychotherapy notes, except:
(i) To carry out the following treatment, payment, or health care
operations, consistent with consent requirements in Sec. 164.506:
(ii) A use or disclosure that is required by Sec. 164.502(a)(2)(ii) or permitted by Sec. 164.512(a); Sec. 164.512(d) with respect to the oversight of the originator of the psychotherapy notes; Sec. 164.512(g)(1); or Sec. 164.512(j)(1)(i).
[ ... ]
(4) Prohibition on conditioning of authorizations. A covered entity may not condition the provision to an individual of treatment, payment, enrollment in the health plan, or eligibility for benefits on the provision of an authorization, except:
(i) A covered health care provider may condition the provision of research-related treatment on provision of an authorization under paragraph (f) of this section;
(ii) A health plan may condition enrollment in the health plan or eligibility for benefits on provision of an authorization requested by the health plan prior to an individual's enrollment in the health plan, if:
(A) The authorization sought is for the health plan's eligibility or enrollment determinations relating to the individual or for its underwriting or risk rating determinations; and
(B) The authorization is not for a use or disclosure of psychotherapy notes under paragraph (a)(2) of this section;
[ ... ]
|82823||1||Sec. 164.524 - Access of Individuals to Protected Health Information.||Patient access to Medical Record is required. Patient access to
Psychotherapy notes is not required.
Sec. 164.524 Access of individuals to protected health information.
(a) Standard: Access to protected health information.
(1) Right of access. Except as otherwise provided in paragraph (a)(2) or (a)(3) of this section, an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set, except for:
(i) Psychotherapy notes;
[ ... ]