LawRefs Customized Legal Information
Attorney Renee C. Walsh

Patient Access to Psychiatric Medical Records

Inquiry re Patient Access to Psychiatric Medical Records – HIPAA:

A patient sees a psychiatrist for several sessions for diagnosed mental illness requiring treatment. The relationship with the psychiatrist ends poorly. The patient no longer sees the psychiatrist but wants to see his psychiatric record, including the psychiatrist’s notes from their sessions together. He is told by the psychiatrist’s office that copies of the medical records are not made for patients and that the only way he can see them is to make an appointment to go over the records with the doctor at a cost of $75. Is this legal?

Response:

Federal law provides that patients and family members shall have access to medical records pursuant to the privacy section of the Health Information Portability and Accountability Act (HIPAA). However, there is an exception which allows health care providers to withhold certain records including psychiatric records provided that an explanation is given to the patient. The psychiatric records that can be excluded from disclosure to the patient are the psychiatrist’s psychotherapy notes. Psychotherapy notes are defined as “notes recorded in any medium by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session.”

The basis for this is that these notes are not the product of the patient but those of the mental health professional. They are personal notes belonging to the the professional. There is a qualifier for the exclusion to apply and that is that the notes can only be withheld if they are kept separate from the patient’s medical chart. The medical chart could include symptoms, diagnosis, testing, treatment, etc. – anything that one would find in a typical medical chart such as that of a primary care provider or an internist.

The short of it is that HIPAA requires that the psychiatrist in the hypothetical provide the patient with a copy of his medical chart, which would likely include documents reporting his medical and physical presentation and history, symptoms, diagnosis, testing, treatment, etc., and any psychiatric notes included within these documents within the medical chart that are not kept separately. The physician in the hypothetical has violated the law.

Where state law permits access it takes precedence over HIPAA:  The provider must permit the patient to see the notes because the state law provides greater rights from the patient’s standpoint for the patient to access psychotherapy notes.

What steps the patient should take:  The patient should send via certified mail, return receipt requested, a letter signed and dated before a notary, requesting copies of his medical chart pursuant to HIPAA. The physician should respond in writing with an explanation.  The patient can expect to pay a fee for the chart and this fee will be capped by law. Often the provider will contact the patient to see if they are financially capable of paying the fee in advance. If the patient receives a redacted medical chart, he can then follow-up with a request for the omitted sections either because they were not kept separately from the medical chart or because they must be provided pursuant to a preemptive state law.  If there are portions of the chart that are in his view incorrect or in error, he can then follow-up with correspondence in that regard, again looking to HIPAA for the procedure on correcting the errors.

Additional Resources:
Medical Records and HIPAA in Michigan
Exchange of Mental Health Records

Discussion:

  1. I am a psychotherapist and I have a client who two years ago participated in psychological testing conducted by another provider during a divorce and custody dispute. This testing was requested by the guardian ad litem, however my client was told it was court ordered. The psychologist who conducted the testing and generated the psychological report was aware of the circumstances (that the testing was not court ordered, but would be presented as such) and would only share the report with the guardian ad litem. Due to the psychological report, the guardian ad litem, who had previously been in support of my client having primary custody of the children, not only changed her mind about the custody situation, but alleged my client had serious mental illness issues that I had not previously diagnosed. The custody situation has since been closed, however my client has signed a consent to disclose information, so that I can receive a copy of the report, so that I can re-evaluate her diagnosis and address issues identified by the testing in her ongoing therapy. The psychologist refuses to release the report, saying my client was told that the report would never be shared with anyone outside of the guardian ad litem and the social worker. She also states the report was not generated for treatment planning purposes, therefore, she does not have to comply with my client’s request to release the report to me. The psychologist maintains that she has a right to withhold this record even though my client’s insurance paid for part of it and my client paid the remainder of the testing fees out of pocket. Does the psychologist have a legal right to withhold the psychological report? If not, how can I compell the psychologist to provide the report? And is it unethical that my client was told her participation in the psychological testing was court ordered when in fact it was not? If so, what recourse does my client have?

    • Dear J. F.:

      The client may consider filing a HIPAA Privacy Rule Complaint with the U.S. Department of Health and Human Services (HHS) Office for Civil Rights.

      If I represented the client I would send a certified letter requesting the report and notifying the therapist that if forced to file a formal complaint, the allegation of the psychotherapist acting illegally by procuring the testing under false pretenses will be addressed by the HHS and the American Psychotherapy Association.

  2. I write for a newspaper and wish to write an article on child abuse based on my case. The ramifications of this abuse are verifiable in both medical and mental health records. I was not given a written diagnosis by the community mental health center I was attending on a volunteer basis. Due to an incident (in which the center told me that if I did not give up my Tricare, then I would have to give up my care there – which turned out to be fictitious information as medicaid pays the bill for a community mental health center regardless of any other insurance) I stopped going to that center and told them to not contact me. Now that I need copies of this diagnosis (Dr. ola told me it was PTSD), I am afraid to go back and ask them for a copy of my diagnosis. Is there a way I can obtain this written information to protect myself from ramifications of telling the truth about my childhood abuse in a way that can help others??

    • Dear Tammy K.:

      Request a copy of your recent examination and findings in writing. It is not against the law to publish truthful personal information.

  3. I was diagnosed with concussion by a physician at a hospital ER following head trauma with loss of consciousness. The concussion symptoms worsened when I made the mistake of returning to full activity prior to concussion recovery due to important deadlines; this was 2 weeks after the diagnosis. Per discharge instructions to return if concussion symptoms worsened, I returned to the ER but made the mistake of going to a different hospital than that which diagnosed me. This hospital inexplicably refused to acknowledge the diagnosed concussion and reported I had self-diagnosed it after a fall. Therefore concussion was not considered in regard to observed cognitive symptoms, all of them which, according to medical sources, are common to concussion and all which had onset with the concussion. I was involuntarily TDO’d on a Thursday and transferred to a psychiatric ward at another hospital. I was never told I was being TDO’d, what that even meant, and never told why. While detained, the concussion was verified by the hospital social worker but the psychiatrist never acknowledged it in his report and evaluated me while I was experiencing concussion symptoms now worsened by emotional trauma and side of effects from removal of all daily prescribed medications. Prior to my TDO hearing, I was told that in order to be released I had to set up appointments with a psychologist and psychiatrist which I did. However, the results of my TDO hearing on Monday (I was detained on a Thursday) resulted in dismissal of the case, the order that I be immediately released, and most importantly, with no mandatory treatment of any kind required. As the court determined no treatment was required or needed, these records should never have been released but were. As a result my primary care medical records are full of statements pertaining to the hospitalization, the listing of the psychologist and psychiatrist as my providers, and notes to keep seeing my psychiatrist and psychologist weekly. What HIPPA, Privacy Rule, Minimum Necessary Rule, or rules pertaining confidentiality can I state to get the physician to remove all notes from my medical records pertaining to this event. I am getting ready to move and do not want to transfer my medical records to a new doctor that may affect my treatment. (Note I requested amendment but was denied despite hard evidence proving errors in the medical records).

    • Dear Kelly:

      Consider starting out by sending the court order along with a letter of explanation demanding that the letter and court order be placed in the medical chart at both hospitals. Consider not focusing on its permanent removal until you talk to a medical malpractice attorney because it sounds like you could have a med mal and/or negligence case. If you’d like help with the letter and/or a referral to a med mal attorney, let me know.

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