Protecting Behavioral Health Information: Managing and Disclosing Mental Health Records and Psychotherapy Notes

Over 43 million Americans experience mental illness each year, according to the National Alliance on Mental Illness. Mental health treatment records are protected from unauthorized disclosure under both federal and state law. Some categories of records, such as psychotherapy notes and substance abuse treatment, contain additional layers of protection. However, such protection is not absolute.

Healthcare counsel must understand the where, when and how of legally disclosing a patient's behavioral health information. For example, when and how can an employer seek mental health records or an evaluation? How about records that may need to be disclosed in a firearms background check? How should a provider response to a subpoena that seeks mental health or substance abuse records? How does the age of the subject complicate the issue of protection and disclosure? One state recently implemented a law requiring parents to disclose any referrals for mental health services when registering their child for public school.

Healthcare providers and their counsel need a thorough understanding and consideration of confidentiality rights as well as disclosure of mental health treatment information to manage mental health records properly.

Listen as our authoritative panel of healthcare counsel discusses behavioral/mental health information and the laws that protect it. The panel will discuss the distinction with psychotherapy notes and what steps should be taken to safeguard behavioral/mental health information. The panel will also discuss the release/disclosure of such information and how to manage mental health records.

1. Protections of behavioral health information
   1. Federal law
   2. State laws
2. The release of behavioral health information
   1. When is it permissible?
   2. When is it required?
   3. Psycho therapy notes vs. mental health records
   4. Substance abuse records
3. Court guidance
4. Best practices

The panel will review these and other key issues:

• What protections does the law afford to behavioral health information?
• What are circumstances under which disclosure of mental health information is permitted? Required?
• What factors should healthcare providers consider when determining whether to make a disclosure?