Cures act

[DrSoon2016]

Does anyone belong to a large organization that is going to begin to open therapy notes due to the cures act?

I work for a large health system and we were told very recently that our therapy notes would be open for our clients to see beginning November 1. We all feel blindsided, and I’m wondering how this is legal or ethical. When our clients began therapy with us we explained the limits of confidentiality to them, and now, we are going to begin opening up their notes for other providers as well as for them to see. If anyone has any suggestions with steps I can take please let me know I’m open to all feedback

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[AbnormalPsych]

They own the notes anyway. Shouldn't be a big deal. What am I missing? What are you writing in there you are afraid of them seeing immediately vs after a short delay by going through the medical record office?

 

[WisNeuro]

I've always written my notes as if the patient would read them at any time, ditto with my assessment notes. It is both ethical and legal. In fact, in most circumstances, it would be illegal and unethical to deny them access to the notes.

As far as "any" provider reading them, that is on the organization. Any provider should not have access to the notes from MH. In our organization, only MH providers can freely see MH notes. Other providers have to "break the glass" in which they receive a warning where they must enter the reason that they are accessing the note, which is then flagged,. You go poking around in notes you are not supposed to, you get fired for cause, possible license complaint if egregious enough.

 

[DrSoon2016]

They own the notes anyway. Shouldn't be a big deal. What am I missing? What are you writing in there you are afraid of them seeing immediately vs after a short delay by going through the medical record office?

I work with children and adolescents, and I don’t understand what this cures act means for them with regards to confidentiality. Many of them discuss their gender and sexual orientation in session, and I do not want their parents to have access to those notes.

 

[cara susanna]

Yeah, in the VA our patients already often have access to notes (through MyHealth E Vet) and other providers in the VA do as well.

 

[WisNeuro]

I work with children and adolescents, and I don’t understand what this cures act means for them with regards to confidentiality. Many of them discuss their gender and sexual orientation in session, and I do not want their parents to have access to those notes.

Legally, they can have access to these notes already, outside of certain specific instances.

 

[DrSoon2016]

They own the notes anyway. Shouldn't be a big deal. What am I missing? What are you writing in there you are afraid of them seeing immediately vs after a short delay by going through the medical record office?

also can you clarify, because I feel like I am the one missing out on here haha , isn’t sharing therapy notes like a really big deal? I felt lik in grad school and in my post doc work we never ever shared notes

 

[WisNeuro]

To be more specific, the notes you enter into the chart, parents can have access to. They can also technically gain access to your process notes with a court order.

 

[LadyHalcyon]

There are some states that allow you not to release notes and other info if you can show it would be harmful to the patient. That being said, I am intentionally vague in notes while still documenting necessary information.

 

[DrSoon2016]

Yeah, in the VA our patients already often have access to notes (through MyHealth E Vet) and other providers in the VA do as well.

Can I ask how that’s going? Has there been any negative side to this?

 

[DrSoon2016]

if a patient of mine identifies as a trans male and their parent does not know, (they are not out to their parents), I am very very concerned about the open note essentially outing them

 

[LadyHalcyon]

if a patient of mine identifies as a trans male and their parent does not know, (they are not out to their parents), I am very very concerned about the open note essentially outing them

Did you not discuss privacy vs confidentiality? Parents typically always have acces to their children's chart. I would suggest you discuss this with your patient because they never really had confidentiality in the first place

 

[WisNeuro]

if a patient of mine identifies as a trans male and their parent does not know, (they are not out to their parents), I am very very concerned about the open note essentially outing them

The patient's parents already technically had access to these notes if they wanted prior to the CURES act.

 

[BuckeyeLove]

That being said, I am intentionally vague in notes while still documenting necessary information.

This. 100000000%

 

[DrSoon2016]

This. 100000000%

How do you write very vaguely about a patient while at the same time using their appropriate pronouns? Even if I wrote vaguely parents would notice the pronouns. I’m honestly writing from a place of wanting to learn

 

[BuckeyeLove]

How do you write very vaguely about a patient while at the same time using their appropriate pronouns? Even if I wrote vaguely parents would notice the pronouns. I’m honestly writing from a place of wanting to learn

I call them what they are, client or patient. That's it.

 

[WisNeuro]

I use patient in chart notes for therapy purposes. For assessment reports, it's their preferred pronoun.

 

[DrSoon2016]

I call them what they are, client or patient. That's it.

Thank you, and what about diagnosis? What if they make criteria for gender dysphoria and that is sensitive information that the client is not comfortable with the parent knowing? I having access to the clients notes, the parent can see the diagnosis

 

[LadyHalcyon]

Yes. I use Ct or Pt in the note in place of name and pronoun. "Ct and therapist explored constructs pertaining to gender identity and sexual orientation." Or "Therapist provided psychoeducation regarding gender and sexual orientation; clt and therapist discussed clt's feelings in relation to this information" or blah blah. But, depending on how old the kid was, I would definitely be exploring why they haven't yet come out to parents and frequently be discussing the differences between privacy and confidentiality, and what that may mean in terms of information disclosure

 

[AcronymAllergy]

Yeah, VA patients have had access to their notes for years. Hasn't been an issue, although it probably does make be pay attention to what they include in notes, which I'd argue is generally a good thing. I've heard of patients calling out providers on note content, which sometimes can be constructive (e.g., the patient misunderstood what was written, or what was written was actually incorrect), sometimes not. Either way, patients have always had the right to review their notes (or in the case of parents, their children's notes).

Include what's absolutely necessary. Don't include anything not germane to the case, or that you believe might harm the patient if they had access to that information.

 

[DrSoon2016]

Yeah, in the VA our patients already often have access to notes (through MyHealth E Vet) and other providers in the VA do as well.

At the VA where do you keep your more detailed notes?Do you have an ability to keep private psychotherapy notes on the electronic healthcare system?

 

[WisNeuro]

At the VA where do you keep your more detailed notes?Do you have an ability to keep private psychotherapy notes on the electronic healthcare system?

Nope. You can make a note private, but as mentioned before, you have to have a reason, e.g., harm to patient if they read. Also, this restriction is not permanent, from a legal standpoint.

 

[LadyHalcyon]

HIPAA enables the patient to inspect and obtain Protected Health Information
(PHI) records, including Psychotherapy Notes created by the psychologist, as long as
those records are maintained. In addition, patients have a right to amend any part of
the record; Under this section, a denial of the proposed amendment can occur if the
record was not created by the psychologist (unless the patient provides a reasonable
basis to believe that the originator of PHI is no longer available to act on the
requested amendment) or if the record is accurate and complete (other subsections
are not discussed as they are unlikely to arise for psychologists). Finally, patients may
obtain an accounting as to who has accessed the PHI and the details about each disclosure

Some states do make distinctions between Psychotherapy and process notes, but according to the above paragraph it seems like if the process notes are maintained they are likely fair game too

 

[WisNeuro]

HIPAA enables the patient to inspect and obtain Protected Health Information
(PHI) records, including Psychotherapy Notes created by the psychologist, as long as
those records are maintained. In addition, patients have a right to amend any part of
the record; Under this section, a denial of the proposed amendment can occur if the
record was not created by the psychologist (unless the patient provides a reasonable
basis to believe that the originator of PHI is no longer available to act on the
requested amendment) or if the record is accurate and complete (other subsections
are not discussed as they are unlikely to arise for psychologists). Finally, patients may
obtain an accounting as to who has accessed the PHI and the details about each disclosure

Some states do make distinctions between Psychotherapy and process notes, but according to the above paragraph it seems like if the process notes are maintained they are likely fair game too

Even if process notes are not part of the EHR, they can still be obtained with valid and upheld court orders in some circumstances.

So, long story short, if there is ever anything that you do not want your patient ever seeing, don't write it down anywhere.

 

[DrSoon2016]

I appreciate you all so much this is very informative!

 

[cara susanna]

Can I ask how that’s going? Has there been any negative side to this?

It's not great, especially because you have some patients--often Axis II--who monitor their notes and get mad at providers for what they write. What's REALLY bad is that C&P notes are included, so patients are able to see the note from their C&P exam often before they even get their official rating decision and the decision narrative for it (which explains the reason for the decision to the veteran in laymen's terms). And you can imagine what kind of issues that can cause. The good news is that C&P will now be contracted and those outside contractor notes will not be available AFAIK.

Generally it's been okay otherwise. I also am very vague and don't write very long or detailed notes. I also imagine that the patient is reading my note as I write it. In grad school we were taught to write reports or notes like a really mean lawyer is looking over our shoulder and making snide remarks, lol. I don't keep separate process notes because I'm pretty good at remembering things and I learned in grad school that if I took notes during a session I would have trouble attending to the actual session. The only notes I keep are completed worksheets or things the patient gives me that they want me to have.

 

[Therapist4Chnge]

To be more specific, the notes you enter into the chart, parents can have access to. They can also technically gain access to your process notes with a court order.

Really? I thought process notes were not part of the medical record?

 

[WisNeuro]

Really? I thought process notes were not part of the medical record?

They are not part of the official record, and will not be in the EMR, but anything that you document about a patient is potentially discoverable in a legal context if so compelled. It would be a rare circumstance, but I am pretty sure that ANY documentation is fair game, legally. If anyone has applicable federal statutes otherwise, I'm open to revising my thoughts.

 

[borne_before]

ALWAYS WRITE YOUR NOTE ASSUMING THE PATIENT WILL READ IT.

 

[PsychPhDone]

Dance like nobody's watching, chart like everybody's watching.

When I first meet a patient, we talk about their access to notes as part of the consent process. I explain how they can obtain copies of their records and ask them to check in with me if anything I write seems off. I explain that medical jargon often means something different than everyday speech.

 

[AbnormalPsych]

also can you clarify, because I feel like I am the one missing out on here haha , isn’t sharing therapy notes like a really big deal? I felt lik in grad school and in my post doc work we never ever shared notes

Sure sharing to random people. But patients already own them/have access unless there are very specific reasons to restrict this and thresholds met. In the states I have practiced you were legally and ethically required to allow them access if requested.

Nothing has changed here for you. Just less steps for them to see the notes. Also, you aren't actually sharing. They will have a system to go through. You aren't actually printing the things out in your healthcare system yourself, I would assume

How do you write very vaguely about a patient while at the same time using their appropriate pronouns? Even if I wrote vaguely parents would notice the pronouns. I’m honestly writing from a place of wanting to learn

"Patient" is the identifier, always

At the VA where do you keep your more detailed notes?Do you have an ability to keep private psychotherapy notes on the electronic healthcare system?

I don't work at the VA. But I keep the details in my mind. Where only I have access.

 

[Sanman]

But I keep the details in my mind. Where only I have access.

For now...

 

[DrSoon2016]

Dance like nobody's watching, chart like everybody's watching.

When I first meet a patient, we talk about their access to notes as part of the consent process. I explain how they can obtain copies of their records and ask them to check in with me if anything I write seems off. I explain that medical jargon often means something different than everyday speech.

What does this mean when reporting abuse? I wouldn’t want personal details to be shared with all of those who can see the patient’s file, but at the same time I don’t think it would be helpful to write a vague Telephone encounter with interacting with CPS. I’m open to all feedback so I’m just curious how you write as if everyone is watching when making report of abuse.

 

[PsyDr]

Haven't you people learned anything from 24hr news? It's not defamatory if it's written in the form of a question.

"I'M JUST ASKING QUESTIONS!"

 

[WisNeuro]

What does this mean when reporting abuse? I wouldn’t want personal details to be shared with all of those who can see the patient’s file, but at the same time I don’t think it would be helpful to write a vague Telephone encounter with interacting with CPS. I’m open to all feedback so I’m just curious how you write as if everyone is watching when making report of abuse.

When making reports of abuse and documenting, you better be specific. This is one situation where you need to make sure that all of your CYA boxes have been checked. The above recommendations were for run of the mill therapy notes. When reportable details and instances come up, you better document adequately. In these circumstances the axiom should be "write notes like the psych board and a lawyer are watching."

 

[PsyDr]

When making reports of abuse and documenting, you better be specific. This is one situation where you need to make sure that all of your CYA boxes have been checked. The above recommendations were for run of the mill therapy notes. When reportable details and instances come up, you better document adequately. In these circumstances the axiom should be "write notes like the psych board and a lawyer are watching."

The Child Abuse Prevention and Treatment Act created civil immunity for any mandated reporter acting as such, so long as it was not made in bad faith. Most state laws include language that prevents board complaints. That should be enough C for YA.

 

[WisNeuro]

The Child Abuse Prevention and Treatment Act created civil immunity for any mandated reporter acting as such, so long as it was not made in bad faith. Most state laws include language that prevents board complaints. That should be enough C for YA.

I was more speaking on if you failed to document things. Or did not support your decision making process. If it isn't in the notes, didn't happen.

 

[PsyDr]

I was more speaking on if you failed to document things. Or did not support your decision making process. If it isn't in the notes, didn't happen.

Doesn't matter, legally. The only way it could matter is IF someone could prove that you reported something that you knew in absolute certainty was false. That's a very hard thing to prove.

 

[AbnormalPsych]

What does this mean when reporting abuse? I wouldn’t want personal details to be shared with all of those who can see the patient’s file, but at the same time I don’t think it would be helpful to write a vague Telephone encounter with interacting with CPS. I’m open to all feedback so I’m just curious how you write as if everyone is watching when making report of abuse.

You do what you gotta do. At this point, clearly the purpose of the interaction and your role has changed. So have your responsibilities and duties.

I think you are over thinking this Act too much, for whatever reason.

 

[WisNeuro]

Doesn't matter, legally. The only way it could matter is IF someone could prove that you reported something that you knew in absolute certainty was false. That's a very hard thing to prove.

Ah, the situation I had more in mind was about a vulnerable person and abuse, SW had been told by a family member that a report had been made, SW never checked, later found out no such report had been made. So, SW documented the abuse, never checked our or documented call to APS. Documentation definitely more important when you choose not to act on something, such as suicide assessment and not choosing to hospitalize someone, for example. I've always erred on the side of making my thought process very explicit.

 

[PsyDr]

Ah, the situation I had more in mind was about a vulnerable person and abuse, SW had been told by a family member that a report had been made, SW never checked, later found out no such report had been made. So, SW documented the abuse, never checked our or documented call to APS. Documentation definitely more important when you choose not to act on something, such as suicide assessment and not choosing to hospitalize someone, for example. I've always erred on the side of making my thought process very explicit.

Makes sense. You ALWAYS have to report.

 

[WisNeuro]

Makes sense. You ALWAYS have to report.

Yeah, the fewer than a handful of times I've been in the situation, even if the person reported that it had already been taken care of, talk to APS or whoever and get the case number of the report so you can include that. If the VA has taught me anything, it's do not trust self-report.

 

[AbnormalPsych]

Makes sense. You ALWAYS have to report.

You should come talk to the lazy clinicians in my clinic. Much PsyDr related panic would ensure

 

[deleted820760]

I’m confused. Everything I’ve read about patient access to therapy notes says access can be denied if therapist thinks it would result in patient harm. I’m fact, it seems like denial of access is actually the norm. Is that not the case? I read that HIPAA does not apply to therapy notes. I think I read that it’s ok to deny patients access in my state’s rules and laws as well. Am I mistaken?

From the state law:
(C) when withholding information, provide the patient with a signed and dated statement reflecting the licensee's determination, based upon the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the patient or another person. The written statement must specify the portion of the record being withheld, the reason for denial and the duration of the denial.
(10) A licensee may, but is not required to provide a patient with access to psychotherapy notes, as that term is specifically defined in 45 C.F.R. § 164.501, maintained by the licensee concerning the patient.

 

[WisNeuro]

I’m confused. Everything I’ve read about patient access to therapy notes says access can be denied if therapist thinks it would result in patient harm. I’m fact, it seems like denial of access is actually the norm. Is that not the case? I read that HIPAA does not apply to therapy notes. I think I read that it’s ok to deny patients access in my state’s rules and laws as well. Am I mistaken?

It may be the confusing wording in HIPAA. What we would consider "process notes" are not part of the record and are weird in terms of HIPAA. Therapy notes as in the EMR, they have access to unless you can clearly state that it would harm that patient. Denial of those EMR notes is definitely not the norm anywhere I have practiced.

Once again, these separate notes can be compelled with a state order. I have never kept separate process notes, so never something I have worried about. And, I don't believe in writing things in notes that I haven't discussed with patients, so also something I've never worried about.

 

[deleted820760]

It may be the confusing wording in HIPAA. What we would consider "process notes" are not part of the record and are weird in terms of HIPAA. Therapy notes as in the EMR, they have access to unless you can clearly state that it would harm that patient. Denial of those EMR notes is definitely not the norm anywhere I have practiced.

Once again, these separate notes can be compelled with a state order. I have never kept separate process notes, so never something I have worried about. And, I don't believe in writing things in notes that I haven't discussed with patients, so also something I've never worried about.

I edited my post to include exact wording from the state law.

Don’t you think the patient having access to therapy notes would be harmful in most cases? At the very least, I would think it would harm the therapeutic relationship even if it doesn’t directly harm the patient.

Some people don’t like being reduced to a diagnostic label, and I can just imagine how pissed some would be if they read that they were “resistant” or “malingering”...

 

[WisNeuro]

The statute you quoted reads as thus

" 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."

It is vague, but would appear to me to be clearly referring to process notes. I, and many others, consider therapy notes what goes into the chart, and process notes what is separate from those EMR notes.

I don't think it would be harmful except in rare circumstances for patients to have access to therapy notes. It would only harm the therapuetic alliance if you were intentionally keeping something from them. If some patients do not like being reduced to a diagnostic label, don't reduce them to one, Fact is, something needs to be billed and they often meet criteria for a disorder that must be documented. Easy, have that conversation with the patient. I used to do a lot of treatment with people with Borderline PD, you always have frank conversations about the diagnosis. By and large, not discussing these things is more about the clinician avoiding a hard conversation than any real desire to protect the patient.

As for malingering or resistant, specific issues. We in neuro do not use malingering unless it meets strict definitions. Otherwise, poor effort or poor motivation suffice, I've done that feedback literally hundreds of times, in a very frank way. If the data and context point you in that direction, it's what you do. I don't believe in lying to the patient. As for resistant, I've had some of my best treatment gains with patients after frankly discussing their resistance to aspects of treatment.

Bottom line, clinicians need to get over their own fears and anxieties, stop treating patients as extremely fragile, and be more open and honest with them. That's how you avoid damaging the therapeutic alliance, not by lying to them by omission.

 

[BuckeyeLove]

Have any of you ever met a practioner who actually keeps process notes? I have not. Not even sure what the point is (...unless you're doing legit analytic work maybe?)

 

[WisNeuro]

Have any of you ever met a practioner who actually keeps process notes? I have not. Not even sure what the point is (...unless you're doing legit analytic work maybe?)

I never have, I was trained in CBT and Psychodynamic. We were always counseled that you could keep notes to help you write your chart notes, but it would probably be best to shred them after you finish your notes.

 

[MAClinician]

I worked at an agency where the client had to sign their session/progress note before we turned them into billing (it was outreach and paper notes at the time) so everything was pretty much open: diagnosis, content/progress of session, and symptoms. The only time I had concerns was when I was working with a young adult with schizophrenia who didn’t always agree that we saw the same symptoms that day (paranoia, distorted thinking, etc). That was tricky to navigate but overall I had to adapt to that system of notes.