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?
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.
Medical Records and HIPAA in Michigan
Exchange of Mental Health Records