Rigors of record keeping

Rigors of record keeping
(January 2009 Issue)

By Nan Shnitzler

When it comes to patient record keeping, psychologists have many masters: state licensure laws, insurance company contracts, institutional regulations, Medicare and Medicaid requirements, clients' wishes. In the last 10 years, the advent of the Health Insurance Portability and Accountability Act (HIPAA) and electronic medical records has further altered the record-keeping landscape.

Rhode Island psychologist Peter Oppenheimer, Ph.D., has watched his intake reports grow from one to three typed pages to satisfy insurance expectations, consumer protections and other mandates.

"The external expectations create a significant burden to create bigger, longer documents than we might choose to do for clinical purposes. It's an unfunded mandate that keeps eating away at our time and resources," Oppenheimer says.

Clearly HIPAA's rules and regulations have added to the record-keeping burden. However, the HIPAA Privacy Rule provides one answer to the risk-reward question around keeping detailed clinical records: the option for separate psychotherapy notes.

"If record keeping is one of the most common questions we get, then psychotherapy notes is the most frequent record-keeping question," says Alan Nessman, J.D., special counsel in the American Psychological Association's Office of Legal and Regulatory Affairs.

Psychotherapy notes document or analyze a counseling session for the psychologist's personal use. They contain detailed personal and confidential information that a patient's other health care providers don't typically need. The HIPAA Privacy Rule confers special protection on psychotherapy notes that are kept separate from the clinical record, according to the winter 2007 edition of Good Practice, the APA's Practice Organization newsletter.

The extent to which psychotherapy notes are available to patients varies depending on how the Privacy Rule interacts with state law. But in every state, health insurance companies are barred from access to psychotherapy notes and cannot withhold payment to obtain them.

Another benefit is, in the event of a multi-year audit by a health insurer, separate psychotherapy notes comprise a huge amount of records and sensitive patient information the psychologist doesn't have to produce.

"Those psychologists are very happy they've been keeping psychotherapy notes," Nessman says.

Oppenheimer is not sold on psychotherapy notes. He acknowledges the increased protection but says it can be cumbersome to manage two files or split information. Ultimately, he says, therapists come up with strategies for coping with separate notes while satisfying two or three constituencies and not losing the primary purpose of the record: to help treat the patient. But it's time consuming.

"If I knew how much writing I'd do as a psychologist, I might have done something else," Oppenheimer says. "I spend a tremendous amount of time at the keyboard."

A perennial question revolves around record retention and what to do once the required time has elapsed. In the absence of state law, APA's revised Record Keeping Guidelines (www.apa.org/practice/recordkeeping.pdf) recommend retaining full records for seven years after the last date of service for adults and for three years after a minor reaches majority, whichever is later. Rhode Island, New Hampshire and Connecticut concur.

In addition to the initial seven-year period, Maine requires that a "treatment summary" be retained for 15 years following the date of last contact and for 15 years after a minor client reaches majority.

Vermont and Massachusetts psychologists must maintain records for five years from the last encounter; in addition, Massachusetts calls for one year after a minor client reaches majority.

Oppenheimer's seven-person Rhode Island practice has accumulated many file cabinets of records in 15 years.

"At some point you have to remember it's been seven years," he says.

APA's Record Keeping Guidelines suggest psychologists weigh the pros and cons of keeping records beyond what states require with the realities of their practices. Keeping records longer could help treat a patient who has relapsed or help defend a therapist against a lawsuit or complaint. Conversely, extant old records could work to the detriment of a client who is in litigation, applying for a security clearance or purchasing life insurance.

In a world of competing records requirements, there's no final arbiter to tell psychologists what to do. In states that have them, licensure and record-keeping laws trump the APA Guidelines, which were purposely written to be aspirational, Nessman says.

The Guidelines don't have all the answers to every potential situation, agrees Stephen Lally, Ph.D., who served on the Committee on Professional Practice and Standards (COPPS) that revised them. He says the revision tried to highlight what psychologists should be aware of in their decision-making process.

"Say you're a preferred provider for a third party payer. You may be keeping records consistent with the ethics code and state law, but there may be contractual issues that stipulate more data points. Or you may have to defer to the record-keeping guidelines of your organization," Lally says. "People need to be cognizant of that."