HIPAA, Minnesota’s Health Records Act, and Psychotherapy Notes
Overview for Providers
Background
Patient access to psychotherapy notes
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in Minnesota may cause confusion among
providers because of the unique interaction of federal and state law where state
law wins .
• Federal law (HIPAA Privacy Rule) allows a mental health professional to
share psychotherapy notes, at the provider’s discretion, with patient consent .
In recognition of the sensitivity of this information, HIPAA requires that
this consent be captured on a form only documenting the consent to release
psychotherapy notes .
• Minnesota law is more stringent than HIPAA with respect to the rights of
individuals .
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In Minnesota, patients have the right to view or release all parts
of their medical record and psychotherapy notes are part of that medical record
that can be viewed or released . The added protection of the notes inclusion in
the medical record is to assure greater access for patients to all of their protected
health information .
What’s in a medical record?
Much of the confusion stems from the differences in definition of what constitutes
a medical record . Even if psychotherapy notes are kept in a separate file, in
Minnesota, they are considered to be part of the medical record. This is to ensure
that patients have full access to complete information about their health.
Though this difference in definition of what is included in medical record may cause
some alarm, in practice, these notes are rarely accessed . Minnesota does allow for the
use of clinical judgment in the release of all medical records, such that if the release
could cause harm to the patient or others, they can be withheld from the patient’s
view .
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HIPAA standard.
Psychotherapy notes are specifically excluded from a patient’s general right to access
or inspect their own medical records under HIPAA’s Privacy Rule . If mental health
professionals wish to disclose the psychotherapy notes, they are generally permitted
to do so, but must receive the patient’s authorization .
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Minnesota standard.
Minnesota’s Health Records Act gives patients access to “complete and current
information possessed by that provider concerning any diagnosis, treatment, and
prognosis” and does not distinguish psychotherapy notes from other medical records .
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1
Under HIPAA, psychotherapy
notes are recorded by a health care
provider who is a mental health
professional that: 1) document or
analyze the contents of conversations
during a counseling session; and 2)
are separated from the rest of the
patient’s medical records (45 C .F .R . §
164 .501) .
2
If HIPAA and a state law differ as
to patient access to medical records,
HIPAA says that the law that gives the
patients more access is the law that the
covered entities within the state should
follow (45 C .F .R . § 160 .203(b)) .
Minnesota allows a patient to access
all of their medical records without
any restrictions as to psychotherapy
notes (Minn . Stat . § 144 .292, subd . 2) .
3
Minn . Stat . § 144 .292, subd . 7
(provider can withhold records if
detrimental to the physical or mental
health of the patient, or is likely to
cause the patient to inflict self-harm,
or to harm another) .
4
45 C .F .R . § 164 .524(a) and 45 C .F .R .
§ 164 .508(a)(2) (HIPAA is silent, but
may require that the provider allow
a patient to view the psychotherapy
notes before any authorization for
disclosure) .
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Minn . Stat . § 144 .292, subd . 2 .
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HIPAA, MINNESOTA’S HEALTH RECORDS ACT, AND PSYCHOTHERAPY NOTES
Minnesota Department of Health, Office of Health Information Technology
www.health.state.mn.us/facilities/ehealth