In the last several months claimants have contacted DCS, Inc. with several issues dealing with Unum’s harassment of mental health providers to obtain actual psychotherapy notes. Although there are several other Lindanee posts on the subject I think the topic deserves a re-mention.
Unum’s general Authorization to obtain information specifically excludes actual psychotherapy notes in its wording. In other words, Unum claims handlers may not use this Authorization to obtain therapy notes from any mental health provider. However, Unum (as do other insurers) does indeed have another version of its Authorization which is specifically for the purpose of obtaining psychotherapy notes. Most Unum claims handlers are unaware they can’t use the general Authorization to obtain mental health information, AND mental health providers do NOT often read the Authorizations they get, therefore unfortunately, Unum is able to obtain very personal information about its insureds.
First of all, let me say that there is no contractual policy provision requiring the submission of actual psychotherapy patient notes as proof of mental and nervous claims.Disability policies contain no such proof of claim requirement. The reason why insurers demand “the notes” is because it is easier to engage in a practice I call “snatching”. “Snatching” is a strategy insurance medical reviewers use to “pick up on” and “snatch” key words and phrases favorable to its non-compensable objective, at the expense of all else contained in the record. Actually, one could cite the same “snatching” possibility from regular medical patient notes as well.
By its very nature, receiving therapy requires insureds to share very personal and often intimate information with their therapists. This information could include trans gender or sexual preference information, fertility counseling, feelings concerning sexual or physical abuse, and other issues not even relevant to the claimed disability. If it were known in advance disability insurers could gain access to actual therapy notes, patients may not share information about themselves openly and honestly with their mental health providers and therapy would be of no or limited value.. I’ve had insureds tell me that they withhold information from their psychiatrist because they suspect Unum may gain access to their actual psychotherapy notes.
In the last five years state laws and HIPAA have changed considerably giving mental health providers greater control over their psychotherapy notes. It is generally presumed psychotherapy notes are the property of the therapist and are written as an aid to the provider in the ongoing treatment of their patients. Although there are some psychotherapists who keep prestigious notes, there are others who may only write down a few words for each session. In any case, psychotherapy notes are NOT intended by the physician to document disability in a way accepted or required by insurance companies. Actual psychotherapy and/or patient notes and certification of disability are two different things and are never intended by the author to document disability.
Mental health providers are NOT required by any authority to give up their actual psychotherapy notes to insurance companies. There remain some situations wherein the state or federal government may subpoena records in the case of child abuse and litigation etc., but certainly an insurance company such as Unum cannot demand psychotherapy notes at any level as proof of claim, nor can any company threaten to deny claims if the psychotherapy notes aren’t released. That said, most disability insurers will beg, harass, and threaten on those occasions when actual psychotherapy notes are unavailable because these companies know the notes contain valuable information which could be “snatched” to validate a claim denial.
Please keep in mind that although actual psychotherapy notes are not required as proof of claim, proof of claim is required from mental health providers. Mental restrictions and limitations can be provided to insurers in summary form, i.e. filling out narrative forms, letters and answering questions when submitted in writing.( This excludes doc-to-doc calls!) Insureds should be careful because some mental health providers prefer to take the easier route by sending actual psychotherapy notes rather than filling out 5 page forms even when the Authorization they are presented with specifically excludes psychotherapy notes. As one psychiatrist put it this week, “These forms are a waste of paper.” Really?
Insureds and claimants have the right to designate actual psychotherapy notes as Protected Health Information “PHI” under HIPAA. Unum and other insurers are famous for claiming, “HIPAA doesn’t have anything to do with disability claims”, and it really doesn’t. But HIPAA does have everything to do with the voluminous amount of medical records that go flying back and forth from health providers to insurance companies electronically or otherwise. So yes, HIPAA does apply when insureds are speaking specifically about protecting their mental health information.
Finally, psychotherapists have a great deal of authority and control when it comes to releasing or not releasing their own therapy notes. Vexatious calls and harassment from insurers to obtain actual psychotherapy notes can be immediately nipped in the bud with the statement, “While I am happy to provide my patient’s insurer with mental restrictions and limitations in summary form, I do not release actual psychotherapy notes to any outside third-party. Should you need updated information, please submit your questions or forms to this office in writing.” This should take care of any repetitious phone calls or requests for actual psychotherapy notes. Some psychotherapists complain about the harassment from insurers, but really need only to make the above response.
In summary, insureds and claimants need to consider the consequences of releasing actual psychotherapy notes to insurance companies. Once this or any other medical information is released it loses its HIPAA protection anyway. (Read the HIPAA compliant Authorizations, it tells you that.) Speak frankly with your mental health provider and together decide how to handle requests from your insurer for actual psychotherapy notes. As a mental health patient you do not have to give permission to your therapist to release actual psychotherapy notes, and insurers cannot threaten to deny a claim because the notes weren’t provided.
Of course, insurers won’t give up on this fight easily since insurance companies are well aware of the financial value of “snatching.” Keep in mind it is insureds’ responsibility to make sure mental restrictions and limitations are provided to the insurance company in summary form. Insureds and claimants still have a responsibility to provide proof of claim, but it doesn’t have to be in the form of actual psychotherapy notes as insurers allege. In order to stop vexatious calls therapists need to know they can step up to plate and put an end to the multiple calls by responding as suggested above.
Psychotherapy is personal; it’s intimate; and its value to the insured depends on its remaining so. Although insurers are entitled to information certified by mental health providers it is not a contractual duty to give up one’s privacy when information can be given to insurers in summary form. Those who have disability claims are subjected to privacy invasions as an inherent part of the process to begin with. However, insured’s intimate life’s details and personal feelings such as those shared with therapists need not be divulged to support a mental a nervous claim despite insurers’ unreasonable attempts to obtain it.
