Hippa, Hippa Hooray`

Many times people get in the habit of taking the simpler road without giving much thought to the action. This is true even of lawyers who are trained to think things through.

One habit that really galls us is that of complying with insurance company requests for medical and even psychological reports to which they know they are clearly not entitled. Insurance companies are always looking for an edge and they have no compunctions about trying to get information which will help them fight a claim, even if the law says that the information is off-limits.

The area of the law in which this information tactic is most abused is that of discovery in disability claims involving psychiatric matters.

Although it arises with any disability claimant who happens to see a psychologist regularly,
what insurers like about these types of psychiatric claims is that claimants are usually somewhat fragile and may be easy to discourage because they fear that their psychiatric disabilities may become known to business associates, relatives, friends or even the general public.

The barest threat of disclosure may be enough to get a claimant to back off and drop a psychiatric disability insurance claim. What an easy way to drop a nice chunk of money to an insurance company’s bottom line. So, insurers will almost invariably demand the claimant’s psychotherapy notes when defending a psychiatric claim.

Most lawyers who litigate with insurance companies probably instinctively get a queasy feeling when asked to disclose the type of information contained in their client’s psychiatric case notes, but they may do it in the spirit of disclosure which has been the hallmark of litigation philosophy during the last several decades. However, their queasy feeling is the correct one and they should not disclose the psychotherapy notes no matter how loudly the insurer demands them.

In fact, the attorney would arguably be violating the Health Insurance and Patient Protection Act (HIPPA) if they did provide the notes. The Act, recognizing the intimate and personal nature of psychotherapy notes, requires a health care provider to receive a very specific authorization from the patient to release any such notes even to another health plan provider.
Busy lawyers, especially, those who do not practice extensively in the health care field, may not be aware that psychotherapy notes should not be made available unless the client clearly authorizes it or a court orders it.

HIPPA proscribes the furnishing of such information by a health provider unless clearly authorized by the patient, 45 C.F.R. Sec. 164.502(b), Sec. 164.508(a)(2)(4).

The patients’ actual medical record, i.e., results of clinical tests, the length of time of counseling sessions, the type and frequency of treatment sessions, and prescribed medications, along with the diagnosis, course of future treatment and prognosis, will most times provide sufficient information for the insurance company to make a proper decision on whether or not to honor a disability claim. The psychotherapy notes are the “gossip” in the case and just serve to open the door to information which is superfluous to the essence of the claim, but can be most damaging to a claimant if it reaches the wrong ears.

HIPPA makes this very clear in 45 C.F.R. 164.501, when it prescribes that the psychotherapy notes be kept separate from the patient’s medical record.

So, the next time a disability insurance carrier demands the psychotherapy notes in a disability claim, tell the insurer to take a hike.

The walk will do it good.