The following question comes to the APA Ethics Office: The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule creates a category of records, "psychotherapy notes," that it defines as notes "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." Given that HIPAA affords psychotherapy notes heightened protection from disclosure to third parties, such as insurance companies, do psychologists have an ethical obligation to keep psychotherapy notes?
This interesting and thoughtful question raises the broader issue of how the Ethics Code addresses record keeping. The first ethical standard in section six, "Record Keeping and Fees," provides one of the few instances in which the code explicitly states its reasons for a rule:
6.01 DOCUMENTATION OF PROFESSIONAL AND SCIENTIFIC WORK AND MAINTENANCE OF RECORDS
Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law.
Note how Standard 6.01 gives different categories of reasons. From the moment a psychologist begins to practice, he or she will develop an approach toward record-keeping. The code invites psychologists to think through their approach in an explicit and organized manner.
In the treatment (as opposed to research) context, the reasons for keeping records set forth in Standard 6.01 could be framed as clinical, organizational, legal, risk management and reimbursement. From a clinical perspective, keeping a record provides a history that a treating psychologist can review to further the treatment and help meet the client's clinical needs. Psychologists vary widely in their clinical use of a record; some take detailed notes, others are sparse in their approach. Also, from a clinical perspective, a record may significantly facilitate the work of a subsequent treating psychologist when the opportunity or necessity of another treatment arises.
From an organizational perspective, keeping a record may facilitate the efficient and effective administrative provision of services, for example, in a setting where the organization, rather than a specific treater, is considered the provider or is responsible for ensuring that clients receive the services to which they are entitled.
From the perspective of reimbursement, an accurate record allows the party responsible for payment to confirm the nature and dates of services. The specific payment context--managed care, Medicaid, or private insurance, for example--may have its own record-keeping requirements.
From a legal perspective, state or federal law may require that a record be kept. What the law requires varies according to jurisdiction. Some states are nearly silent on the issue, while others are specific in what a record must contain (see Kansas regulation 102-1-20 at www.ksbsrb.org/psychologists.html, for an example of greater specificity). Other states explicitly allow a psychologist not to keep a record under certain circumstances (see for example Washington state regulation 246-924-354(g), at www.leg.wa.gov/wac). It is interesting to note that often the actual requirements of statutes and regulations are minimal, and it can be very useful for psychologists to acquaint themselves with their jurisdiction's record-keeping requirements.
From a risk management perspective, keeping a record may be the standard of care. Also, documenting one's thoughtful and reasonable work may protect the psychologist in an ethics committee, licensing board, or court proceeding, should an action against the psychologist arise. Some courts have held that for the purposes of litigation, a fact finder may assume that the record reflects the totality of service provided; from this perspective, what is not documented did not occur. Thus, keeping a record may help minimize the psychologist's exposure to legal or ethical liability.
At the beginning of a career and periodically along the way, it can be very useful for psychologists to think through and refine their own philosophy of record-keeping. Psychologists may want to examine each of the perspectives above in turn, insofar as each consideration will become part of that philosophy. As part of this process, each psychologist must determine how these perspectives are best integrated with one another and into the psychologist's practice, and how they are weighted in the context of jurisdictions, practice settings, and payment contexts that have considerable variability in what record keeping they require. Some psychologists, for example, may write with risk management primarily in mind, others with clinical considerations primarily in mind, still others with meeting their jurisdiction's record-keeping requirements as a primary motivation. However a psychologist assigns priority to these considerations, the point is for the psychologist to think through what works best for his or her particular practice.
It is important to recognize and acknowledge time as a significant limitation on record-keeping. Many psychologists simply do not have the time to create the records they would like, and a lack of time may result in a minimalist approach. In addition, assigning priority to one consideration may mean less emphasis on another. For example, writing primarily from a risk-management orientation may mean that the record is less valuable from a clinical perspective. Again, over time each psychologist will develop and refine a record-keeping philosophy that makes sense given the psychologist's personal preferences, setting and practice.
HIPAA defines psychotherapy notes as notes kept separate from the medical record that document or analyze the contents of conversation and that do not contain "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" (see HIPAA section 164.501; www.cms.hhs.gov/hipaa). Using the Ethics Code as a guide, the psychologist who posed the question for this Ethics Rounds might consider whether, given his record-keeping philosophy, he will keep notes that document and analyze conversations from his sessions--sometimes referred to as process notes--and if he chooses to do so, whether he will keep the notes separate from the medical record so as to afford them the greater HIPAA psychotherapy-notes protection. (The psychologist will remain mindful of what record-keeping requirements the particular jurisdiction and organizational setting may have.) Because HIPAA does not require that psychologists keep psychotherapy notes, the focus of our ethical analysis now turns to Ethical Standard 4.02, according to which psychologists discuss with their clients the limits of confidentiality:
4.02 DISCUSSING THE LIMITS OF CONFIDENTIALITY
(a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality...
The Ethics Code makes clear that record-keeping is not an end in itself. Rather, keeping a record serves multiple goals. The more a psychologist has examined the reasons behind keeping a record and has considered how those reasons fit together when applied to his or her own practice, the more likely it is that the record will convey a coherent, useful history of the treatment--a history that will serve both the psychologist and the patient well.
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