Secrets And Electronic Health Records: A Privacy Concern

Does your orthodontist or opthamologist need to know what you tell your psychotherapist in order to provide you with quality care? In the age of electronic medical records, a whole range of health care providers may have access to this information whether you want them to or not.

The issue of how to ensure that psychotherapy notes remain private, even from other doctors, was one that troubled many at the second annual Health Privacy Summit in Washington last week.

“Psychotherapists are often the canaries in the coal mine” when it comes to health privacy, said James Pyles, an attorney who specializes in health law at the firm Powers, Pyles, Sutter and Verville PC.

Here’s what many say is the problem: If a mental health specialist types up his or her notes from a therapy session and puts them into a patient’s electronic medical record, that file can be shared with any doctor the patient sees within their health system. And, because of a loophole in the Health Insurance Portability and Accountability Act, or HIPAA, there’s nothing a patient can do to stop this from happening.

Many mental health professionals, who consider their patients’ privacy and confidentiality to be sacrosanct, find this appalling. But often times, the decision of how they file their patients’ records is not up to them.

Abby Greene is a counselor at a methadone clinic in Long Island, N.Y. Her clinic, which is affiliated with a large psychiartric hospital and health system, recently switched over to electronic medical records and now requires all of its clinicians to enter the notes they take during patient sessions into a computer. Greene said she’s thinking about leaving her job because the ethical dilemmas she’s facing are becoming too much to bear.

She said her notes contain details about criminal activities her patients have engaged in. “When I type information into the file and hit send, I don’t feel good,” Greene said. “I feel like this could harm someone.”

A real-life example of Greene’s fears was offered by an attorney named Julie. After being denied treatment for stomach pains by a new doctor, Julie, who spoke at the summit but withheld her last name, discovered that the doctor had full access to her psychotherapist’s notes. The notes contained detailed information about her regimen of psychiatric medications, her diagnosis of bipolar disorder and the sexual abuse she suffered as a child.

HIPAA expressly prohibits mental health professionals from sharing their psychotherapy notes with anyone if they don’t have their patients’ authorization. However, this only applies if the notes are kept in a separate computer file that isn’t commingled with the patients’ electronic medical record. If they’re not, these detailed narratives are treated just like blood pressure readings or cholesterol levels.

According to Jim Finley at the American Mental Health Counselors Association, behavioral health practitioners have been slow to adopt electronic health records because, unlike with doctors, the federal government didn’t provide them with incentives to adopt. But, in an email, he said his association believes “a substantial number [of practitioners] already currently use electronic records and many more are in the process of converting.”

Finley also writes that most of the members of his association are in small private practices, “but practices are consolidating around the country and we expect more of our members to become affiliated with larger integrated models in the future.”

Some health care practices, especially large, organized ones, integrate the medical files for all of their patients into one electronic record. They say this allows their doctors to provide higher-quality, coordinated care.

But Dr. William Sage, the vice provost for health affairs at the University of Texas at Austin School of Law, says there’s another reason behind the push for IT integration.

“All of this information exists to allow someone to get paid,” he said. “We collect the information we need in order to get paid.”