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Conflicting Principles and Priorities
The issues considered in the following paragraphs highlight potentialconflicts
between two important principles. On the one hand, medical-legalprinciples indicate
that the medical record should be complete, factual, and accurate. On the other,
the growing vulnerability of medical recordsnecessitates great circumspection
on the part of the practitioner aboutwhat to write in an official medical record
lest this expose the patient to abreach of privacy and confidentiality that would
undermine thepsychotherapy and harm the patient. Practitioners in every individualclinical
situation must be free to use their judgment in facing this dilemma.What follows
is a consideration of the issues involved; it is not a standardof practice and
is not binding on members of the APA.
Documentation of any medical procedure
serves multiple purposesand is generally required by state statute, case law,
and/or the bylaws of health care organizations. Documentation is a medical and
legal record ofassessment, decision-making, general management, and specific medicaltreatment.
It should be factual, legible and accurate. The record traditionally serves to
facilitate continuity in the care of the patient by thetreating psychiatrist or
successors. Secondarily, with the patient's specificwritten, informed consent,
the medical record can also be referenced toverify that services actually took
place or to evaluate "medical necessity" of services rendered for purposes of
claiming third party payment. (Suchusage of a detailed record of psychotherapy
is, however, considered bymany practitioners to be incompatible with the practice
of psychotherapy by Psychiatrists ny.) Furthermore, the medical record may become evidence in litigation
for a variety of forensic purposes, including professional liability, where documentation
may make a significant difference in the exposure of thetreating psychiatrist
to liability (psychiatrists ny ' Purchasing Group, 1994). Despite ethical standards
and varying degrees of legal protection ofconfidentiality of the doctor-patient
relationship, medical records may be open to disclosure in unanticipated ways
that are beyond the control of thepatient or the psychiatrist, as in the case
of mandated reporting laws or other statutory exceptions to confidentiality. Such
potential intrusions maypresent risks to the integrity of psychotherapeutic treatments.
The psychiatrist should use all available legal meansto protect the confidentiality
of any record of psychotherapy.
Psychiatric treatment, especially psychotherapy,
involves sensitive,personal information about the patient and other people in
the patient's life.The patient reveals this information to the psychiatrist in
the faith and trust that it will be used to advance the treatment and that no
information fromthat treatment will be revealed to any other person without informedconsent
for disclosure. In a landmark ruling pertaining to the admissibilityof evidence
in Federal courts, the U.S. Supreme Court has explicitly acknowledged that psychotherapy
requires an atmosphere of trust and confidence.
HHS protection of psychotherapy
notes. This principle was furtherelaborated in the special protections for psychotherapy
notes in the Privacy Rule promulgated by the U.S. Department of Health and HumanServices
(HHS) in December, 2000, in compliance with the HealthInsurance Portability and
Accountability Act of 1996 (HIPAA). Mandatory compliance with the rule will take
effect in April, 2003. It establishes aspecial category of protection for psychotherapy
notes, which are definedas "notes recorded (in any medium) by a health care provider
who is amental health professional documenting or analyzing the contents ofconversation
during a private counseling session or a group, joint, or familycounseling session."
The definition excludes medication prescription andmonitoring, counseling session
start and stop times, the modalities andfrequencies of treatment furnished, results
of clinical tests, and anysummary of the following items: Diagnosis, functional
status, the treatmentplan, symptoms, prognosis and progress." (The items excluded
frompsychotherapy notes are components of the general medical/psychiatricrecord.)
Furthermore, "to meet the definition of psychotherapy notes, theinformation must
be separated from the rest of the individual's medical record." Notably, psychotherapy
notes are still a part of the identifiablerecord.
Access to these notes
is forbidden except with the patient's specificauthorization. Authorization may
not be compelled as a condition of healthinsurance payment or provision of services.
Narrow exceptions to thisprotection include reporting laws (e.g. child abuse),
disclosures necessaryto prevent harm to the patient or others, supervision for
training purposeswithin the ambit of confidentiality, defense against litigation
by the patient,investigation by a medical examiner to determine the cause of death
of thepatient, health care oversight (investigation of the therapist), and disclosures
authorized by the patient. The patient does not have the rightto read, amend,
or have a copy of psychotherapy notes. The protectioncontinues after the death
of the patient, except as noted above. The APA believes disclosure of psychotherapy
notes to third-partypayers is not necessary for determining payment or medical
necessity; thisis consistent with the HIPAA Privacy Rule’s definition of psychotherapy
notes.
The rationale for special protection of psychotherapy notes is
basedon the deep trust needed for full disclosure of intimate personal material
bya patient for the sole purpose of understanding and benefit within apsychotherapeutic
relationship. It is keyed to the patient's expectations and the process of treatment,
not to the procedure code of the service at hand. Therefore, sensitive materialdisclosed
by a patient may be segregated in psychotherapy notes, whetherthe service is a
specifically identified psychotherapy service or another psychiatric service that
the patient would view as establishing or including a "counseling relationship",
such as psychiatric evaluation or pharmacologicalmanagement defined as providing
no more than a minimal amount of psychotherapy . APA’s resource document on Psychotherapy
Notes Provision of HIPAA Privacy Rule (March 2002), developed by the Committee
on Confidentiality and the Council onPsychiatry and the Law, presents a summary
and clarification of the regulation insofar as it pertains to psychotherapy notes.
The American Psychiatric Association is committed to seeking maximum protection
of the confidentiality of psychiatric records.
The fact that it is now
technically feasible to computerize medicalrecords and transmit them electronically
may present a greatly increasedvulnerability to unauthorized access that may compromise
confidentialityand could cause significant harm to the patient. No existing security
system absolutely protects electronic records in data banks from human error or
malice. Although the same risks pertain to paper records, accessto electronic
records may be easier to accomplish and more difficult todetect unless audit trails
are maintained, accessible, and monitored.Recording psychotherapy content or process
in electronic systems beyond the direct control of the practitioner (and professionals
in an organized setting who are collaborating in the patient's psychotherapeutic
treatment)would place a patient's private thoughts and acts at such grave risk
ofunauthorized disclosure as to deter or limit treatment. Psychotherapy is a crucial
part of the training of psychiatric residents. As a part of this training, residents
must learn how to documentpsychotherapy in the medical record while maintaining
confidentiality. They need to understand those instances when documentation conflicts
with and potentially jeopardizes the confidentiality upon which the effectivenessof
the psychotherapy is based. The same emphasis on maintaining confidentiality in
documentation should also be addressed in thecontinuing education of practicing
psychiatrists ny . What follows is a suggested format, not a standard of practice,
fordocumentation of psychotherapy by psychiatrists ny . It does not address issues
involved in the process of releasing information to third parties, butit considers
how the possibility of such release may affect documentation procedures. This
discussion does not necessarily reflect current practice ofdocumentation of psychotherapy
throughout the profession. Variationsoccur because of state law and the requirements
of individual clinical situations. The extent of documentation may vary from session
to sessionand depends on the treatment method and intensity. A patient and/or
apsychotherapist may prefer that there be no documentation, although thiscan pose
significant liability risks to the practitioner because of theabsence of contemporaneous
documentation that can serve as evidenceto support the standard of care provided.
It should also be noted that theabsence of adequate documentation makes it difficult
for another psychotherapist to take over the care of a patient in cases ofpsychotherapist
disability or death.In some states documentation isexplicitly required under law.
APA's ethical principles state "Because of the sensitive and privatenature of
the information with which the psychiatrist deals, he/she must becircumspect in
the information that he/she chooses to disclose to othersabout a patient." And,
"Ethically the psychiatrist may disclose only thatinformation which is relevant
to a given situation. He/she should avoid offering speculation as fact." The psychiatrist
should be mindful of the cautions stated in these principles when writing medical
records in general,considering how likely it is that others might view the records
and thusbecome a vehicle for disclosure. Entering any notation of psychotherapyprocess
or content requires even greater circumspection.
Suggested
format for documentation of psychotherapy bypsychiatrists ny
1.Clinical
judgment by Psychiatrists ny. The growing vulnerability of medicalrecords necessitates great circumspection
on the part of the practitionerabout what to write in an official medical/psychiatric
record in order not to expose the patient to a breach of privacy and confidentiality
that would undermine the psychotherapy and harm the patient. Practitioners in
each individual clinical situation must be free to use their judgment in coming
toterms with this dilemma.
2.Variation in documentation procedures.
Variations indocumentation procedures may necessarily occur because of state law
or the requirements of individual clinical situations. The latter may include
a patient's request or the clinician's judgment that there be no identifiabledocumentation.
Possible legal ramifications of avoiding documentationmay vary in different jurisdictions.
3.Initial evaluation by Psychiatrists ny. The record of the patient's initial evaluationshould
accord with generally accepted procedures for conducting and documenting an initial
psychiatric evaluation, which are beyond the scopeof these recommendations. It
is important that the individual clinician use judgment in regard to what information
is included in the evaluation reportso as not to jeopardize the patient's privacy
or confidentiality. An initialevaluation may be done and documented by another
psychiatrist. Whiledocumentation of the initial clinical evaluation is a part
of the generalmedical/psychiatric record, the first meeting with a psychiatrist
is theintroductory experience in establishing the psychotherapy portion ofpsychiatric
treatment. Therefore, personal information revealed by the patient during evaluation
for psychotherapy may be recorded in thepsychotherapy notes, subject to the definitions
and exceptions that areelaborated in the HHS privacy rule.
4.Concise
documentation of psychotherapy while respectingthe privacy of the patient's mental
life by Psychiatrists ny. Characteristically, the general medical/psychiatric record should concisely
record only administrativematerial regarding the psychotherapy itself, such as
the date, duration ofthe session, procedure code, and/or category of psychotherapeutic
intervention (e.g., psychodynamic therapy, supportive therapy, cognitiverestructuring,
relaxation or behavioral modification techniques, etc.). Depending on clinical
judgment, the treatment setting and the security ofthe patient record in that
particular treatment setting, some practitionersmay also include a brief mention
of major themes or topic(s) addressed,whereas others would consider this an unacceptable
risk to theconfidentiality of sensitive communications. While scheduled clock
times ofstarting and ending the session or duration of a session may be recorded
as an administrative matter if required by third parties, the Commission onPsychotherapy
by psychiatrists ny believes that actual times of the patient'sarrival (e.g.,
lateness) and departure as determined by the patient (e.g.,abrupt departure) are
subject matter for the psychotherapy process andtherefore should be recorded in
the protected psychotherapy notes. If the psychiatrist were investigated for alleged
fraud related to time issues, the information and the clinical explanation for
the patient's deviation from the scheduled times would be available for defense
in the psychotherapy notes. It is important to remember the principles of “minimum
necessary”information (see following section.) Clinicians should use their judgmentabout
the information that they plan to record in the generalmedical/psychiatric record,
especially in the context of other personshaving potential access to this information..
5.Documentation of psychiatric management. The generalmedical/psychiatric record
may include other descriptive and historicalinformation, not related to the process
or content of psychotherapy, which may provide a record of responsible, diligent
psychiatric management and be valuable both to patient care and to the psychiatrist
in case of untoward developments.
Examples of such information are:
•Clinically
important objective events in the treatment setting or thepatient's life (e.g.,
the therapist's unexpected absence, or a death inthe family)
•Clinical
observations of the patient's mental and physical status (e.g., noting the signs
that a patient's depression has improved)
•Changes in diagnosis, DSM or
ICD codes, functional status, ortreatment plan (e.g., the appearance of new symptoms,
return towork, new medication)
•Documentation of the psychiatrist's efforts
to obtain relevant information from other sources
•Notation that a patient
has been informed and indicated anunderstanding of the risks and benefits when
medications ortherapeutic procedures are changed in the course of treatment
•Collaboration
with other clinicians•Changes in the legal status of the patient -e.g. custody,
guardianship,involuntary status
•Other pertinent administrative data. Legal
reporting requirements or the need to justify hospitalization orprotective intervention
may necessitate documentation of informationindicating danger to the patient or
others, such as suicidal ideation with intention to act, child abuse, or credible
threats of harm to others. Therecord would generally include basic management
information that couldenable other clinicians to coordinate effective care by
a psychiatrictreatment team or to maintain continuity of care if necessary. However,
aresponsible professional approach in today's world is to consider andjustify
the necessity of recording each item. The HIPAA privacy rule mandates that disclosure
of medical recordsinformation be limited to the minimum necessary to accomplish
the purpose of the disclosure. The reader is referred to the APA PositionStatement,
Minimum Necessary Guidelines for Third-Party Payers for Psychiatric Treatment
(December, 2001) when anticipating possible disclosure to third party payers.
The psychiatrist may wish to considerorganizing the documentation of psychiatric
management in such a waythat notations of minimum necessary information can be
easily extractedfrom the rest of the record.6.Psychotherapy Notes. Intimate personal
content, details offantasies and dreams, process interactions, sensitive information
about other individuals in the patient's life, or the psychiatrist's personalreactions,
hypotheses, or speculations are not necessary in a formal medical/psychiatric
record. Before charting such material the clinician should carefully consider
the potential vulnerability of the record todisclosure and misinterpretation.
In any case, such notations, if recordedat all in identifiable form, should be
confined to the protectedpsychotherapy notes as defined and designated by the
HHS privacy rule.
7.Information systems considerations by Psychiatrists ny. Information
entered intoa computerized system that goes beyond the direct and immediate control
of the treating psychiatrist (and, in an organized treatment setting, of theprofessionals
who are collaborating in the patients care) should bestringently restricted to
protect patient privacy and confidentiality. It mustbe limited to the minimum
requirements of the system for administrativeand basic clinical data and not jeopardize
the essential privacy ofpsychotherapy material. As with any disclosure of medical
records, paperor electronic, transmission of detailed clinical information to
informationsystems outside the treatment setting must not occur without the awareness
and specific, voluntary, specifically defined, written consent ofthe patient.
psychiatrists ny , along with their patients, should have the right todecide together
to keep information from psychotherapy out of any computerized system. If kept
on a computer, psychotherapy notes should be in a separate and secure file that
is inaccessible to other users or othercomputers, unless the patient specifically
authorizes disclosure to others.
8.Psychotherapy with Medical Evaluation
and Management by Psychiatrists ny.The APA and the Commission on Psychotherapy by psychiatrists ny affirmthat psychiatrists ny ' medical training, experience, and assessment and
management skills are integral to their ongoing psychotherapeutic work. However,
certain CPT codes in the 908xx series specifying"Psychotherapy with Medical Evaluation
and Management (E&M)" have been interpreted by APA's experts on coding to require
specificdocumentation that in each session thus coded the physician 1) assessedthe
patient's condition through history-taking and examination and/or 2) carried out
medical decision-making and/or 3) provided managementservices. The medical E&M
service(s) may optionally be described under aseparate heading from the psychotherapy
service. Writing a prescription is only one of many possible actions fulfilling
this requirement.Documentation may include mental status or physical observations
or findings, laboratory test results, prescriptions written (dates, dosages, quantities,
refills, phone number of pharmacy, etc.), side effects or rationale for changes
of medication, notation that a patient has been fullyinformed and indicated an
understanding of the risks and benefits of a new medication or therapeutic procedure,
compliance with medication regimenand clinical response, etc. A minimal number
of E&M activities may suffice. At this time, it appears that the medical evaluation
and managementservice (as distinct from the psychotherapy service) rendered under
the"Psychotherapy with Medical E&M" codes is comparable to a Level Oneservice
under the general E&M codes (992xx) available for use by allphysicians. Level
One assessment could consist of one element of themental status examination, a
vital sign, or an observation ofmusculoskeletal status. Documentation requirements
for the general E&M (992xx) codes arestill in flux. Third parties, such as Medicare,
insurance companies, and HMO's are still in the process of developing policies
on the kind ofdocumentation they may require in order to reimburse patients and/or
paypractitioners for CPT codes for "Psychotherapy with Medical E&M" (908xx). The
APA will work hard to ensure that these new standardsconform to APA recommendations
for documentation of psychotherapy by psychiatrists ny . The contents of the psychotherapy
portion of aPsychotherapy with E&M service should be documented in the protectedpsychotherapy
notes in accordance with the principles stated above. The medical E&M portion
belongs in the general medical/psychiatric record.
9.Consideration
of patient access to records. psychiatrists ny should be cognizant of and sensitive
to the fact that patients have accessto their medical records in many jurisdictions.
State law may requirerelease of the record to another physician or health care
professionalcaring for the patient or to the patient's attorney, pursuant to valid
writtenauthorization by the patient. The HIPAA rule mandates that patients may
view and submit corrections to their general medical record, butpsychotherapy
notes are excluded from this mandated access by the patient unless the record
is involved in litigation.
10. psychiatrists ny personal working notes:
an unresolveddilemma. In keeping with the APA Guidelines on Confidentiality
(1987) and some authorities on psychiatry and the law (Appelbaum and Gutheil,1991),
the psychiatrist may make personal working notes, unidentified and kept physically
apart from the medical record, containing intimate details of the patients mental
phenomena, observations of other people in thepatient's life, the psychiatrist's
reflections and self-observations, hypotheses, predictions, etc. Such personal
working notes are often used as a memory aid, as a guide to future work, for training,
supervision orconsultation, or for scientific research that would not identify
the patient.Many psychiatrists ny consider such uses to be crucial to the clinical
care they provide. If such notes are written, every effort should be made toexclude
information that would reveal the identity of the patient to anyone but the treating
psychiatrist. If there is any risk of disclosure, patientsshould be informed in
a general way about the use of notes for teachingand research and the ways in
which identifiable disclosures will beavoided, and the patient's authorization
should be obtained for such uses.As long as personal working notes are not identifiable
and are not part ofthe patient's medical record, they are not covered by the HHS
regulations.psychiatrists ny should be aware, however, that these notes might
be subject to discovery during litigation, unless specifically protected by statestatute.
Even in protective jurisdictions the definition of personal working notes may
be challenged and the notes could be subject to judicial review. It is likely
that they would be considered privileged in federal judicialprocedures , and in state courts that followan approach similar to Jaffee.
If the court does not quash the subpoena onthe ground that the material is privileged,
the judge would probably reviewit in camera and select what is relevant to the
case at hand. Destroyingsuch notes after a subpoena arrives opens the psychiatrist
to extremelegal risk and should never be done. Personal working notes should bedestroyed
as soon as their purpose has been served, and this should bedone in a systematic,
routine way for all cases that clearly is not designedto avoid discovery in a
specific case. psychiatrists ny should acquaintthemselves with prevailing law
affecting personal working notes in theirstate. The presence or absence of notes
is unrelated to the issue whetheror not the psychiatrist will be required to testify.
11. Final clinical note by psychiatrists ny . A final clinical note at the end of treatmentmay
summarize the psychotherapy concisely in the general medical recordfrom a technical
standpoint without divulging intimate personal information,and document the patient's
status and prognosis, reasons for termination,and any recommendations made to
the patient regarding further treatment and/or follow-up. It is important that
the individual clinician use judgment inregard to what information is included
in the final report so as not tojeopardize the patient's privacy or confidentiality.
12. Special situations. Special documentation requirementsestablished by reputable
professional organizations for use by members ofthose organizations may apply
to specified treatment methods or clinical situations. An example is The American
Psychoanalytic Association's Practice Bulletin on "Charting Psychoanalysis" (American
Psychoanalytic Association, 1997.) | | | | | |
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