Whose Notes Are They, Really? (And Why It Matters)
When I provided consultations, therapists constantly told me:
- “I don’t want to release my notes”
- “I don’t have time to write my session notes”
- “No one could make sense of my notes, but it’s OK, I’m the only one reading them.”
The use of the phrase “my notes” often reflects a worldview that might not be a helpful one: The idea that session notes are the clinician’s. While legally the notes still belong to the provider, the modern view of notes has significantly shifted. Now, it is more helpful to view ourselves as the custodian of the client’s medical record, not as the keeper of a private “journal” of the work.
And sometimes we forget that insurance plans, licensing boards, ethics committees, disability agencies, courts all have the right to view our the records we are keeping, under certain conditions.
The shift in the view of client records was codified in 2000 when HIPAA Privacy Rules gave clients the right to view and receive a copy of their medical records, and to have a copy transmitted to a designated person. Clients were also given the right to view all billing and payment records in their chart. Then in 2021, the Open Notes Rule gave clients additional rights related to access to their own records.
“Barbara, I know the notes aren’t really ‘mine.’ So, what’s your point?” My point is on a daily basis it is easy to forget that notes belong to the client, so we often let bad habits develop, such as falling behind in writing notes, writing superficial notes, and writing notes no one else can read.
It’s important to remember that:
- If notes are requested, in most situations, our job is to assist a client in making an informed choice about the release of notes — not to make the decision ourselves. I’ve had situations where the client was fine with the release, even when I wasn’t keen on it. Their notes, their decision.
- Keeping sub-par notes isn’t really a legal option. You have the legal responsibility to keep a up-to-date medical record and to write good notes about your treatment for each session. This includes detailed and legible payment and billing records. “Having a good memory” does not fulfill this duty.
- Believe me, I know how hard it is to keep up with notes, but it has to be a priority. Insurance plans are asking for records more frequently than in the past, and you must always be prepared to turn them over to a licensing board, ethics committee, to a client, or for a disability review. You can’t just rewrite (or write) notes if faced with a record request. It is fraud to misrepresent the date that a note was written, and fraud is a crime.
- You must write notes as if your client (or a reviewer) will read them, so they must be readable to others. Be objective. Avoid negative characterizations.
“But what about HIPAA-defined ‘psychotherapy notes?'” Great question. First, let’s define psychotherapy notes. HIPAA defined psychotherapy notes as optional notes clinicians may keep with their personal analysis of sessions. They must be kept separate from the client’s chart. Psychotherapy notes cannot include factual details that belong in the medical record, such as session start/stop times, modalities and frequencies of treatment, test results, medication, diagnosis, functional status, treatment plan, symptoms, prognosis, and progress.
Under HIPAA, psychotherapy notes are afforded a higher level of confidentiality than session notes, so clients — and insurance plans — can’t view them. But don’t be fooled into thinking these are completely confidential; they can be subpoenaed, and the client can authorize their release to others. That’s why I join many attorneys in discouraging therapists from keeping them. (click here or click here for more info about psychotherapy notes and HIPAA).
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Do you cringe at the idea of someone reading your notes? Learn to write quick notes that meet legal, ethical, and health plan expectations — and be confident about the notes you are writing! Check out my Progress Notes webinar here
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Barbara Griswold, LMFT, is a private practice coach and the author of Navigating the Insurance Maze: The Therapist's Complete Guide to Working With Insurance – And Whether You Should, 10th edition. Check out Barbara's online catalog of helpful online courses, practice forms, and other therapist resources related to insurance, documentation, and running your therapy business here.