Cummings: HIPAA may become most disruptive, impactful force in psychotherapy practice

By Paula Hartman-Stein, Ph.D.


With less than six months before the Health Insurance Portability and Accountability Act (HIPAA) goes into effect, psychologists are nervously pondering how it will change their day to day practice patterns. Nick Cummings, Ph.D., former APA president and healthcare visionary, predicts HIPAA may well turn out to be “the most disruptive or impactful force psychotherapy practice has ever encountered.” 

Although there are three major sections of HIPAA including rules about privacy, record security, and the transaction of electronic transfer of data, the privacy rules are likely to bring about the most immediate change felt by practitioners. Before April 14, 2003 psychologists will need to figure out new ways of documenting their services and perhaps begin to buy extra charts and file cabinets and/or new HIPAA-compliant software programs. 

        Glen Karr, J.D., attorney for the Ohio Psychological Association, agrees that psychologists should start keeping psychotherapy notes separate from other parts of a client’s file. He recommended that practitioners refer to HIPAA’s definition of psychotherapy documentation to understand the difference between general treatment notes and those provided extra protection under the new law.

         Private psychotherapy notes analyze the contents of conversation during private, group, joint, or family counseling sessions that record the therapist’s impressions about the patient. Known generally as “process notes,” such documentation can be shielded from insurance companies to protect the patient from intrusive scrutiny and can benefit the mental health provider. Patients do not have the automatic right to inspect or obtain a copy of psychotherapy notes. This general rule can be preempted if there is a more stringent state law that allows patients greater access to their records.

         HIPAA specifies that the general patient record may include the following information: medication prescription and monitoring, start and stop time of the therapy session, the modalities and frequencies of treatment, results of clinical tests, diagnosis, symptoms, functional status, the treatment plan, prognosis, and general progress in treatment. When a patient signs a general consent to use health information for reimbursement purposes, he/she allows information in the general record to be used for determination of eligibility, claims management, and payment from third parties.

         To illustrate the difference in documenting a psychological intervention using the two chart method, the general record may reflect that cognitive therapy was conducted that used problem-solving and relaxation techniques and encouraged that patient to generate coping thoughts to alleviate symptoms of anxiety. In contrast, the private chart might reflect that the patient’s anxiety symptoms appear to be triggered by thoughts of wanting to divorce her spouse and fearing the anger of her husband and authoritarian father. The therapist might also describe the patient’s long standing personality pattern that predisposes her to feeling anxious during confrontations.

        When asked why psychologists should go to the extra effort of recording process notes, Cummings said, “There is an outside chance that the court could subpoena these data, and if you do not have it, this puts you in a tough place. Psychologists who do brief, intermittent psychotherapy throughout the life cycle may want the private, personal information to refresh their memory. This is important, as the patient after 10 or more years comes in talking as if she or he saw you last week.”

        Whether the psychotherapy notes are kept in a separate section of the chart or in a separate filing cabinet or computer disk will be decided by the setting and the practicalities and constraints of the setting, according to Bobbi Celeste, Ph.D., Director of Professional Affairs from the Ohio Psychological Assn. She explained that APA pushed for these special protections. “However the notes are separated, it will be important that it be absolutely clear which notes are the protected ones,” said Celeste. She painted a worse case scenario of a clerk copying psychotherapy notes that are in the general file and sending them to an insurer without appropriate authorization. The patient could sue for violation of privacy, and the psychologist cannot demonstrate that there was adequate protection of those notes.

An area of HIPAA interpretation that remains unclear is whether the same degree of privacy protection applies to psychological test data or information provided by the client for the sole purpose of a psychological evaluation. Karr describes HIPAA as “a work in progress.” He added that HIPAA is moving forward faster than originally expected and pushing changes for which people are not prepared. Both Karr and Cummings agree that no one will know the impact of HIPAA until case law evolves over time.

According to an Oct. 16 news release from the Department of Health and Human Services, the Centers for Medicare and Medicaid Services (CMS) will be creating a new office within the agency to focus on HIPAA activities. But privacy enforcement, the area that will oversee issues such as documentation of services, will be the responsibility of the HHS Office of Civil Rights. The two agencies will work together to address common issues and answer specific questions about compliance. So stay tuned.

 Paula Hartman-Stein, Ph.D. recently presented a workshop for the New York State Psychological Assn. on Medicare regulations and HIPAA from a practitioner's viewpoint. She  is a clinical geropsychologist, consultant, and trainer in Kent, Ohio. She can be reached through her website, To email Dr. Hartman-Stein click here:

Hartman-Stein, P.E. (2002). Cummings: HIPAA may become most disruptive, impactful force in psychotherapy practice. The National Psychologist, Vol. 11, No. 6, p 17.