The prevalence of mental health conditions and the need for adequate treatment has long been on the rise in the United States. Early in the COVID-19 pandemic, many areas experienced a spike in demand for behavioral health services, and since then, overall demand seems to have returned to pre-pandemic levels. Still, behavioral health providers need to be prepared for continued and increasing demand. Statistics related to mental health, in general, are compelling. Approximately half of all Americans will experience a mental health condition at some point in their lives. Additionally, 46.3 million people aged 12 or older (16.5%) experienced a past year substance use disorder (SUD), and 19.4 million adults have co-occurring mental illness and SUD. The global societal impact of poor mental health is expected to increase to $6 trillion by 2030. Anecdotal feedback within our own system suggests that depression, anxiety, increased substance use, and post-traumatic stress disorder have been the most common reasons for people seeking treatment since 2020.
Often, individuals seeking treatment for any number of conditions receive psychotherapy. From a clinical perspective, psychotherapy is a broad term referring to a type of behavioral health therapy, often called “talk therapy.” The services are facilitated by individuals whose academics and training evolved from social and behavioral sciences. These professionals can include a psychiatrist, psychologist, or other licensed mental health provider. These skilled clinicians are trained to rely on a variety of treatment modalities that can be utilized to help the patient achieve their desired goals. Behavioral health providers can sometimes be heard referencing the use of a “clinical toolbox” comprised of various evidence-based methods. A few of the more common modalities involve cognitive behavioral therapy, interpersonal therapy, and solution-focused brief therapy. Benefits of seeking therapy are numerous, ranging from acquiring problem-solving skills, self-care techniques, and gaining confidence. Psychotherapy tends to fall into four common categories: individual, group, couples, and family. Psychotherapy is described by service codes 90832–90838 in the Current Procedural Terminology manual. An encounter for psychotherapy may be supplied as a stand-alone visit or on the same day as an evaluation and management service (in which the 25 modifier rules apply).
The HIPAA Privacy Rule, however, offers a more nuanced definition of the psychotherapy note 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 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.”  With this definition in mind, remember that a psychotherapy note will not apply to all behavioral health visits and is seen more as an optional note for the provider to use as needed.
So, while psychotherapy is a relatively broad clinical term, a psychotherapy note is very specifically defined by HIPAA and is afforded additional privacy protections. With the confluence of growing demand for behavioral health services, widespread adoption of electronic health records, telehealth expansion, and increasing regulatory action, it is critical for providers of behavioral health services to understand all their options and obligations with documentation.
Behavioral health treatment information can be sensitive, and many health systems—including our own—choose to partition or otherwise add additional layers of protection for behavioral health records compared to other records to mitigate inappropriate access. However, it is crucial to remember that behavioral health records generally need to be available for treatment, payment, and operations purposes, and patients still have a right to access them in most cases.
However, psychotherapy notes are offered additional protections, as defined by the Privacy Rule. The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) contemplates that psychotherapy notes should be “treated differently from other mental health information both because they contain particularly sensitive information and because they are the personal notes of the therapist that typically are not required or useful for treatment, payment, or health care operations purposes, other than by the mental health professional who created the notes.”
In the case of notes that meet this definition, they would not be considered part of the legal medical record or designated record set and are not subject to the patient’s right of access or typical releases of information, meaning they should typically not be shared with the patient or their authorized representative.
On November 6, 2020, OCR announced the 10th settlement under the HIPAA Right of Access Initiative involving Riverside Psychiatric Medical Group (RPMG). In this case, the provider failed to respond to a patient’s request for a copy of their medical record. In response to the OCR investigation, RPMG argued the request included psychotherapy notes, and thus they did not need to comply. OCR stated, “While the HIPAA Rules do not require production of psychotherapy notes, they do require covered entities (1) to provide requestors a written explanation when it denies any records request in whole or in part (which RPMG did not do), and (2) to provide the individual access to his or her medical records other than psychotherapy notes (and information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding).” RPMG was fined $25,000, required to fulfill the records request—excluding psychotherapy notes—and entered a two-year corrective action plan.
Best practice in the electronic health record
Historically, behavioral health providers would often keep separate paper notes detailing the psychotherapy content apart from the main medical record. Others may have included psychotherapy content in their primary medical record without documenting separate notes. In both cases, there are unnecessary risks: improper storage of the paper notes or the possibility of releasing sensitive content that should not be released with a typical records request.
To mitigate these risks and improve functionality, the best solution may be to keep two notes in the electronic health record (EHR), one to support the claim and one for certain psychotherapy content. Depending on your EHR vendor, there is most likely an option to build sensitive note types that are partitioned from the medical record and allow for limited access. Providers can document first in their typical note template to include all required documentation supporting the service and then open a second note if needed for the additional psychotherapy content.
At first, this process may sound cumbersome to most providers, so it is imperative to include them in the planning and building of any new workflows. In our own system, we found that providers had a desire to protect this sensitive content but lacked an appropriate workflow. Ultimately, with provider engagement, we achieved our goal of establishing an efficient workflow that our providers wanted to utilize—which involved using two separate notes for these types of encounters. The content needed for each type of note is outlined in the following:
Encounter notes for legal medical record/billing should include:
Counseling session start and stop times
Modalities and frequencies of treatment furnished
Symptoms or chief complaint
Results of clinical tests
Prognosis and progress to date
Medication prescription and monitoring
Psychotherapy notes should include:
Missives regarding the contents of conversation
Personal reminders for the next session
21st Century Cures Act implications
The 21st Century Cures Act and the Information Blocking Rule have profoundly impacted our system and generated significant changes to how information is shared more proactively with patients via our patient portal. In fact, our need for an improved psychotherapy process was first identified during Phase 1 Cures Act planning. As a system, we chose to push more content proactively to our patient portal for improved access and transparency, but not knowing if this decision might impact psychotherapy notes. Initially, behavioral health providers wanted to simply block the note from being shared, citing one of the note-sharing exceptions. Upon further review, however, we recognized that this approach might not be reasonable or appropriate in most cases because the reason for blocking the note did not meet the established exceptions. This discussion with providers led to the realization that a separate psychotherapy note would satisfy their desire to protect certain content from the patient without needing to block the whole record and possibly violate the Cures Act Information Blocking Rule.
: SUD treatment records
On November 28, 2022, HHS, through OCR in coordination with the Substance Abuse and Mental Health Services Administration, issued a Notice of Proposed Rulemaking to revise the Confidentiality of Substance Use Disorder Patient Records regulations. Among the proposed changes, HHS may “create a new definition similar to psychotherapy notes that is specific to the notes of SUD counseling sessions by a Part 2 program professional. Such notes would be Part 2 records, but could not be disclosed based on a general consent for TPO [treatment, payment, and operations]. They could only be disclosed with a separate written consent that is not combined with a consent to disclose any other type of health information.” Once this rule is finalized, it is probable that Part 2 programs could also benefit from a similar workflow to the one outlined in this article.
In summary, if you have behavioral health providers in your office or health system, evaluate your need or existing workflows for psychotherapy notes. Your providers would likely prefer to utilize an efficient electronic solution rather than maintaining separate paper records. Work closely with your IT resources and providers to develop a workflow that improves both patient privacy and mitigates risks of noncompliance with the Cures Act. Part 2 programs should also watch for changes in the proposed changes to regulation around the confidentiality of SUD patient records and consider implementing a similar workflow for eligible SUD counseling notes.
A psychotherapy note is optional and should be used at the provider’s discretion.
The encounter note must contain all content required for supporting the service.
Limit access to only the author or limited providers involved in psychotherapy.
Ensure the psychotherapy note is not included in the legal medical record.
Part 2 programs may need to consider a similar process for substance use disorder counseling notes.