VA Caregiver Support – PCAFC Medical Records and Psychotherapy Notes

Another topic I want to discuss with you is the ‘verbal’ requirement from the VA Caregiver Support Central Office for the Caregiver Support Coordinator (CSC) to access Veteran’s medical records and psychotherapy notes for the following reasons:

  1. Complete the Caregiver Support Administrative Eligibility Screening Tool (CSAEST)
  2. To review the clinical evaluations during the application phase
  3. To complete the Caregiver Program Clinical Eligibility Assessment Child Note
  4. To complete initial and interim in-home assessments
  5. 90-day review for continued clinical eligibility
  6. Reassessment request
  7. Appeals request
  8. For other reasons deemed necessary

You cannot find any of these requirements listed in the law, statue, regulation or directive.

I wasn’t notified of these requirements for the CSC to access my medical records and psychotherapy notes as part of the Caregiver Support (CS), Program of Comprehensive Assistance for Family Caregiver (PCAFC). I cannot comment on the Program of General Caregiver Support Services (PGCSS) because I don’t have any information pertaining to this program, and it doesn’t have the clinical requirements of the PCAFC.

Keep in mind, there are always some exceptions to any process or procedure. Just because you don’t think it happened to you or you might have been told, doesn’t mean everyone was told of these verbal requirements.

Medical Records. In order to access a Veteran’s (patient) medical record you have to meet certain requirements such as medical need to know, treatment, billing, healthcare operation, etc. The CSC doesn’t meet any of these reasons to access a Veteran’s medical records, and isn’t notifying Veterans she/he is accessing them.

Note: The Health and Human Services (HHS) states most of us believe that our medical and other health information is private and should be protected, and we want to know who has this information. The Privacy Rule, a Federal law, gives you rights over your health information and sets rules and limits on who can look at and receive your health information. The Privacy Rule applies to all forms of individuals’ protected health information, whether electronic, written, or oral. The Security Rule is a Federal law that requires security for health information in electronic form.

Psychotherapy Notes. In order to access a Veteran’s (patient) psychotherapy notes, see definition from Health and Human Services (HHS) below, the Veteran must provide a written authorization to the requestor. The CSC isn’t obtaining written authorization from Veteran’s to access or even notifying Veteran’s she/he is accessing them. I was told by the VISN CSC, Social Worker Supervisor and the CSC they do not need my written authorization to access psychotherapy notes. Not true according to HHS and VA Privacy Policy.

Note: HHS states, Generally, the Privacy Rule applies uniformly to all protected health information, without regard to the type of information. One exception to this general rule is for psychotherapy notes, which receive special protections. The Privacy Rule defines psychotherapy notes as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. Psychotherapy notes do not include any information about medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, or results of clinical tests; nor do they include summaries of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date. Psychotherapy notes also do not include any information that is maintained in a patient’s medical record. See 45 CFR 164.501. Psychotherapy notes are treated differently from other mental health information both because they contain particularly sensitive information and because they are the personal notes of the therapist that typically are not required or useful for treatment, payment, or health care operations purposes, other than by the mental health professional who created the notes. Therefore, with few exceptions, the Privacy Rule requires a covered entity to obtain a patient’s authorization prior to a disclosure of psychotherapy notes for any reason, including a disclosure for treatment purposes to a health care provider other than the originator of the notes. See 45 CFR 164.508(a)(2). A notable exception exists for disclosures required by other law, such as for mandatory reporting of abuse, and mandatory “duty to warn” situations regarding threats of serious and imminent harm made by the patient (State laws vary as to whether such a warning is mandatory or permissible).

Ask yourself this, if the Veteran’s primary care team, see definition below, were performing the clinical responsibilities instead of the CSC, would the CSC need access to the Veteran’s medical records and psychotherapy notes? Another one, how can a social worker review and interrupt a Veterans medical records and psychotherapy notes to make medical decisions/determinations of a licensed medical or mental health doctor? One more, if these were truly legal requirements, why didn’t the CS Central Office write them in the directive?

Excerpt from Caregiver Support (CS) regulation, 38 CFR 71, 71.15 Definitions: Primary care team means a group of medical professionals who care for a patient and who are selected by VA based on the clinical needs of the patient. The team must include a primary care provider who coordinates the care, and may include clinical specialists (e.g., a neurologist, psychiatrist, etc.), resident physicians, nurses, physicians’ assistants, nurse practitioners, occupational or rehabilitation therapists, social workers, etc., as indicated by the needs of the particular patient.

In the next post I will discuss how the VA currently manages a Veteran’s medical record and psychotherapy notes.





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