Wednesday, March 18, 2015

Mental Health Records

Under Federal law, you have a right to a copy of your mental health records. The only exception is if having that access may cause you to harm yourself or others. Psychotherapy notes can be withheld as long as they are kept separate from the your medical chart. 

Federal law requires your psychiatrist to provide a copy of the medical chart, which should include documents reporting the medical and physical presentation and history, symptoms, diagnosis, testing, treatment, etc., together with any psychiatric notes included with those documents. 

There are Federal and State regulations to compel your doctor to provide your mental health records if needed. For example, because the Social Security Administration (“SSA”) is directing Administrative Law Judges (“ALJ’s”) to require contemporaneous records even if treating doctors provide narrative summaries, disability claimants need their mental health records. 

The problem is that invoking procedures to compel your doctors to produce records can cause them to terminate you as patients. Therefore, the better practice is to give an ALJ a copy of the written request for your records, which was ignored or denied, and then ask the ALJ to subpoena the records. By having the SSA pressuring your doctor to disclose the records instead of yourself, you decrease the chances that your doctor will terminate you as a patient. 

I represent a 49 year old teacher with mental impairments, whose psychiatrist disregarded multiple requests for treatment records. As expected, the ALJ stated that he needed the treatment records, even though he did not really think they were necessary. Each time the treatment records were requested, the psychiatrist refaxed his summary narrative report, and he indicated that maybe the claimant should probably seek treatment elsewhere. Rather than risk irritating the psychiatrist any further, I asked the ALJ to request the records. The ALJ approved SSD benefits today with only some of the records I was able to obtain after the hearing.

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