Telehealth Working from Home: Legal & Ethical Compliance

Psychotherapy Notes Excluded from Federal “Open Notes Rule?”


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Open Notes Rule

The term “Open Notes Rule” is a popular term coined to depict the legislation enacted by the 21st Century Cures Act that is more accurately referred to as the ONC Final Rule on Interoperability, Information Blocking, and ONC Health IT Certification (OpenNotes, 2020). It is a continuation of the legislation originally enacted as part of the HITECH act of 2009 to promote EHR interoperability (with the ultimate goal being a national database for healthcare information on all U.S. Citizens) and open access to records. The ONC Final Rule does NOT apply with regard to three specific issues. Users, however, must understand these issues carefully before deciding that their situation warrants exclusion. Consulting with an attorney may be advisable. 

Cures/ ONC Final Rule Legislation

Specifically, the Cures/ ONC Final Rule legislation requires certain EHR developers and the healthcare professionals who use those products to NOT block their clinical notes from patient access. Previously, we were required to provide a patient’s medical record upon request. The ONC Final Rule takes that a step further by saying that after April 5, 2021 (projected start date), users of EHRs which are certified by the ONC must make ALL clinical notes in their EHRs available to patient access 24/7.  After the enactment date, it will no longer be legal to only release notes upon request. Instead, healthcare professionals using certified EHRs must publish them in their patient portals so patients can access them whenever they want.

A Federal Rule Prohibiting Information Blocking Will Take Effect April 5, 2021

The rule is part of the 21st Century Cures Act, which is designed to promote secure access and exchange of electronic health information (EHI). The information blocking rule applies to all psychotherapists who keep EHI.

  • The rule is designed to give patients and their healthcare providers secure access to health information.
  • It also aims to increase innovation and competition by fostering an ecosystem of new applications to provide patients with more choices in their healthcare.
  • It calls on the healthcare industry to adopt standardized application programming interfaces (APIs), which will help allow individuals to securely and easily access structured electronic health information using smartphone applications.
  • The rule includes a provision requiring that patients can electronically access all of their electronic health information (EHI), structured and/or unstructured, at no cost.
  • Finally, to further support access and exchange of EHI, the rule implements the information blocking provisions of the Cures Act. The rule outlines eight exceptions to the definition of information blocking.

The rule applies to psychotherapists who:

  • Use EHRs with the capability to give patients direct and immediate access will generally need to provide instant access.
  • Work in large health systems may already be using EHRs that allow direct and immediate patient access to records.
  • Keep EHI but do not have an EHR that allows for direct and immediate patient access will likely come under the infeasibility exception to the instant access requirement.

The American Psychological Association further describes the application of the Open Notes Rule to psychologists here: New federal rule affects psychologists with electronic health records.

“Psychotherapy Note” Exclusions from “Open Notes Rule” Requirements

Exceptions to the Open Notes Rule include:

  • Psychotherapists may exclude notes of any type that may cause harm to the patient or others should the patient have access. However, the rule specifically states that psychological distress does not meet the definition of harm (Torous, 2020).
  • Psychotherapists who keep paper records will not be impacted.

Any notes designated as “psychotherapy notes” are excluded from the Open Notes Rule as long as they are stored separately. However, if the psychotherapy notes reference content that is considered medical record notes, they cannot be blocked. Medical record notes include:

  • Diagnosis
  • Symptoms
  • Functional status
  • Treatment plans
  • Prognosis
  • Progress to date
  • Session start and stop times
  • Test results
  • The modalities and frequencies of treatment furnished
  • Medication prescription and monitoring 

What Next?

Reasonable takeaways from the upcoming legal change may include:

  • Write all notes – both medical record and psychotherapy – as if your client or patient is standing over your shoulder.
  • Begin NOW knowing what things can and cannot be included in a psychotherapy note to ensure that your psychotherapy notes would not be considered part of the medical record.
  • Use your medical record to post facts – data – using phrases such as, “Patient-reported x.”
  • Use psychotherapy notes to record details that you want to remember. For example, someone viewing the medical record may not need to know intimate details of a client or patient’s history, but you may want to keep that information in your personal psychotherapy notes for future reference.
  • Notes should be clear, concise, and written with sensitivity. View your notes as one more way to possibly support your clients and patients – not as a private venting space for frustrations experienced with them.


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1 year ago

If a caretaker (family member) has a release of records on file and the patient is unable to (due to psychosis) set up the patient portal?

Susan C. Litton, Ph.D.
Susan C. Litton, Ph.D.
2 years ago

Cathy Doran, my understanding of the Open Notes Rule is that its current focus is on giving patients 24/7 access to their notes. I agree with Marlene that it’s best to check with your own billing agents/attorneys for other questions, but speaking personally, I don’t see that Open Notes (i.e., Information Blocking) would apply to existing laws on sharing notes with other providers. You do raise an interesting point, though, in that, depending on how your EHR is set up, it would be possible that other providers who use the same ONC Certified EHR might automatically also have access to notes you’ve written on your patients. I think for that answer, you’d have to check with your EHR vendor. Each vendor may be doing that differently. Some EHRs may have it set up so you can change settings to allow or disallow sharing these kinds of notes with other providers.

2 years ago

The company I work for online has had this “open notes” policy for years (our clinician notes are emailed to the client directly). I keep my notes direct, succinct, respectful and as short as possible (it is also a template, which helps).

Cathy Doran
Cathy Doran
2 years ago

The records contained in our ONC certified EHR are protected by 42CFR Part 2 and cannot be shared with other providers without specific, written consent of the patient. I assume this will also be an exclusion to this rule?

Carolyn Mathews, PsyD, LMHC
Carolyn Mathews, PsyD, LMHC
2 years ago

Thanks for sharing this information. It helps to be reminded of the content difference between Progress Notes and Psychotherapy Notes. I have always written my notes in a respectful way.

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