We propose that a covered health care provider not be permitted to disclose psychotherapy notes, as defined by this proposed rule, for treatment, payment, or health care operations unless a specific authorization is obtained from the individual. In addition, a covered entity would not be permitted to condition treatment of an individual, enrollment of an individual in a health plan, or payment of a claim for benefits made by or on behalf of an individual on a requirement that the individual provide a specific authorization for the disclosure of psychotherapy notes.
We would define “psychotherapy notes” to mean detailed 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. Such notes could be used only by the therapist who wrote them, would have to be maintained separately from the medical record, and could not be involved in the documentation necessary for health care treatment, payment, or operations (as defined in section 164.504). Such term would not include medication prescription and monitoring, counseling session start and stop times or the modalities and frequencies of treatment furnished, results of clinical tests, or summaries of the following items: diagnoses, functional status, the treatment plan, symptoms, prognosis and progress to date.
Psychotherapy notes are of primary value to the specific provider and the promise of strict confidentiality helps to ensure that the patient will feel comfortable freely and completely disclosing very personal information essential to successful treatment. Unlike information shared with other health care providers for the purposes of treatment, psychotherapy notes are more detailed and subjective and are subject to unique rules of disclosure. In Jaffee v. Redmond , 518 U. S. 1 (1996), the Supreme Court ruled that conversations and notes between a patient and psychotherapist are confidential and protected from compulsory disclosure. The language in the Supreme Court opinion makes the rationale clear:
Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust.” . . . Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist's ability to help her patients
“is completely dependent upon [the patients'] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure . . . patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule . . . , there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. ...”
By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests. ... The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.
That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. ... Because state legislatures are fully aware of the need to protect the integrity of the fact finding functions of their courts, the existence of a consensus among the States indicates that “reason and experience” support recognition of the privilege. In addition, given the importance of the patient's understanding that her communications with her therapist will not be publicly disclosed, any State's promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. ... Jaffee, 518 U.S. 7-9.
The special status of the psychotherapist privilege in our society as well as the physical and conceptual segregation of the psychotherapy notes makes this prohibition on disclosures for treatment, payment and health care operations without a specific authorization from the individual reasonable and practical.
We note that the policy being applied to psychotherapy notes differs from the policy being applied to most other types of protected health information. For most protected health information, a covered entity would be prohibited from soliciting an authorization from an individual for treatment, payment and health operations unless such an authorization is required by other applicable law. In this case, because of the special status of psychotherapy notes as described above, we propose that a specific authorization be required before such notes can be disclosed within the treatment and payment systems. We propose this special treatment because there are few reasons why other health care entities should need the psychotherapy notes about an individual, and in those cases, the individual is in the best position to determine if the notes should be disclosed. For example, an individual could authorize disclosure if they are changing health care providers. Since we have defined psychotherapy notes in such a way that they do not include information that health plans would need to process a claim for services, special authorizations for payment purposes should be rare. We would note that the provisions governing authorizations under § 164.508 would apply to the special authorizations under this provision.
We also propose that covered entities not be permitted to condition treatment or payment decisions on a requirement that an individual provide a specific authorization for the use or disclosure of psychotherapy notes. The special protections that are being proposed would not be meaningful if covered entities could coerce individuals by conditioning treatment or payment decisions on a requirement that the individual authorize use or disclosures of such notes. This requirement would not prohibit the provider that creates the psychotherapy notes information from using the notes for treatment of the individual. The provider could not, however, condition the provision of treatment on a requirement that the individual authorize the use of the psychotherapy notes by the covered entity for other purposes or the disclosure of the notes by the provider to others.
We considered including other disclosures permitted under proposed § 164.510 within the prohibition described in this provision, but were unsure if psychotherapy notes were ever relevant to the public policy purposes underlying those disclosures. For example, we would assume that such notes are rarely disclosed for public health purposes or to next of kin. We solicit comment on whether there are additional categories of disclosures permitted under proposed § 164.510 for which the disclosure of psychotherapy notes by covered entities without specific individual authorization would be appropriate.