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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Most therapists write a corresponding progress note in their patient’s treatment record for every therapy session they provide. However, some therapists wonder whether or not the time that they spend writing progress notes is well-spent, or, whether progress notes are even necessary at all. Ultimately, it is difficult for any therapist to know what to include in a progress note unless he or she understands the basic function of these notes in documenting treatment.
Michael Griffin, JD, LCSW (CAMFT Staff Attorney)
Reviewed December, 2021 by Bradley J. Muldrow, JD (CAMFT Staff Attorney)
Generally speaking, most therapists write a corresponding progress note in their patient’s treatment record for every therapy session they provide. However, some therapists wonder whether or not the time that they spend writing progress notes is well-spent, or, whether progress notes are even necessary at all. Conversely, other therapists are in the habit of writing voluminous progress notes, but they worry about what they write, e.g., “Did I write too much?” “Should I write more?” Ultimately, it is difficult for any therapist to know what to include in a progress note unless he or she understands the basic function of these notes in documenting treatment.
Legal and ethical standards clearly state that therapists must maintain some kind of record of the treatment they provide.1 This article discusses the basic purpose and function of progress notes as one component of a patient’s treatment record. 2
The Documentation Function of Progress Notes
In the simplest terms, progress notes are brief, written notes in a patient’s treatment record, which are produced by a therapist as a means of documenting aspects of his or her patient’s treatment. Progress notes may also be used to document important issues or concerns that are related to the patient’s treatment. Depending on the case, progress notes may provide significant documentation related to some or all of the following concerns.
Documenting competent treatment: The treatment record is a formal recording of the assessment and treatment rendered to a patient by his/her therapist. As one component of the patient’s treatment record, progress notes allow a therapist to describe his or her work with a patient. Without progress notes, it would be difficult, if not impossible, for a therapist to create a health care record that accurately reflects his or her sound clinical judgment, the standards of the profession, and the nature of the services being rendered. Furthermore, progress notes provide a therapist with an opportunity to document his or her exercise of judgment in dealing with complex and challenging treatment scenarios. For example, progress notes may reflect a therapist’s ongoing efforts to assess and manage his or her patient’s symptoms, or demonstrate his or her therapeutic skill in responding to complex risk factors. In addition, should a therapist’s conduct be challenged by the patient or by the Board of Behavioral Sciences, progress notes may help to establish that his or her conduct was ethical and lawful.
Documenting treatment necessity: Progress notes provide evidence of the patient’s need for treatment at a particular point in time. As an example, an insurer or similar entity may require a provider to document the “medical necessity” for treatment in the patient’s record. In California, treatment programs or clinics that receive funding from the state Medi-Cal program are routinely visited by utilization-review staff who reviews treatment records, including progress notes, for documentation of medical necessity.
Treatment planning: Therapists occasionally utilize progress notes to refresh their recollection of clinical information from prior therapy sessions. This review may be particularly helpful when an extended period of time has elapsed since the last patient contact. Also, in some treatment settings, such as community clinics that are staffed by registered associates, a patient may receive services from different therapists during one continuous treatment episode. In such an instance, progress notes provide a source of clinical information that informs a therapist about the efficacy of clinical interventions that may have been utilized earlier in the patient’s treatment.
Billing/payment documentation: In the event of a dispute over the amount or type of services rendered, progress notes substantiate the fact that professional mental health services were rendered on a given date and that the therapist’s billing was consistent with the nature of services rendered.
Legal and ethical standards: Although there aren’t specific legal or ethical standards that dictate the form or content of a progress note, there are relevant standards that are applicable to clinical record- keeping in general. It is important to note that the general language found in California law regarding clinical recordkeeping affords therapists with a fair amount of latitude. California law expresses the general requirement that a therapist maintain a treatment record that would be typical of other, reasonable and prudent therapists.3 According to the California Business & Professions Code, Marriage and Family Therapists and Clinical Social Workers may be charged with unprofessional conduct for the “Failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.”4
The ethical standards that are provided by professional associations are also a source of guidance to therapists concerning issues of recordkeeping. For example, section 5.3 of the CAMFT Code of Ethics expresses a standard using language consistent with the language found in the California Business and Professions Code: “Marriage and family therapists create and maintain client/patient records consistent with sound clinical judgment, standards of the profession, and the nature of the services being rendered.” 5 In another example, the National Association of Social Workers Code of Ethics provides that: “Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.” 6
Psychotherapists regularly enter into agreements with third parties such as insurance companies or managed care organizations. A therapist who elects to contract with such entities should be aware of the organization’s specific practice guidelines and/or treatment standards. In contrast to the general legal and ethical standards cited earlier, these guidelines and standards often contain specific requirements for documentation of mental health services, including progress note entries. Practice guidelines and like documents are often accessible to providers via the organization’s Internet website.
Examples of information that therapists may want to include in progress notes: 7
Styles of documentation
Problem-oriented records and the use of “SOAP notes.”
There is no single method or style of writing progress notes that is considered to be the best, or better than other methods. In fact, it seems unlikely that a particular method of documentation could ever be constructed that was ideally applicable to all therapists or suitable to all treatment settings. That being said, therapists may find it helpful to be aware of a method of progress note documentation that is widely used in medically oriented health care settings known as “SOAP notes.” SOAP notes are derived from a documentation format known as problem-oriented medical records (POMR).8 POMR was originally designed to improve communication among health care professionals. 9 SOAP notes may be used to identify and monitor a patient’s problems, document specific interventions and assess treatment progress.10
SOAP notes are composed of four parts: S (subjective), O (objective), A (assessment) and P (plan).11 S, the subjective component, represents the patient’s perspective about their problems.12 O, the objective component, describes the therapist’s observations.13 A, the assessment component, provides the therapist’s analysis of the information contained in the subjective and objective sections of the note.14 Finally, P, the plan component, describes the treatment plan, including the planned frequency of visits, etc., any recommendations made, and when appropriate, the patient’s prognosis.15
Some therapists may find that the SOAP formula clarifies and systematizes their clinical writing, while others may consider the format to be cumbersome. Therapists who are interested in SOAP notes and problem oriented record-keeping should look at a number of examples of SOAP notes and tryout the method to see whether it may be adapted to fit their needs.
Distinguishing Progress Notes from “Psychotherapy Notes” according to HIPAA
Therapists who are covered entities under HIPAA should take special notice of the concept of “Psychotherapy Notes” according to HIPAA.16 (Therapists who are not HIPAA-covered entities do not have to be concerned with this particular distinction). Therapists who are HIPAA covered entities must first understand that progress notes are not synonymous with, and should be distinguished from, the HIPAA-created category known as “Psychotherapy Notes.” 17
Here is the explanation: The HIPAA Final Privacy Rule 18 created a special category of documentation entitled Psychotherapy Notes, which are:
“…notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.”19
Psychotherapy Notes under HIPAA exclude the following:
“…medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.” 20
Therapists should keep in mind the fact that the permissible content of Psychotherapy Notes, according to HIPAA, is actually quite limited and clearly excludes content that is ordinarily used to document the patient’s treatment, e.g., the content that is ordinarily noted in progress notes. 21 Pursuant to HIPAA, the excluded content described above is considered to be part of the patient’s medical record. 22
Why should covered-entities be concerned about the meaning of Psychotherapy Notes? Basically, the distinction is only meaningful to a therapist who is a HIPAA covered-entity, who wants to keep notes that analyze the contents of his or her conversations with a patient and doesn’t want those notes to become part of the patient’s treatment record. According to HIPAA, so long as Psychotherapy Notes do not contain the aforementioned excluded content, and they are separated from the rest of the patient’s medical record, then, they are not considered to be a part of his or her record. As for the specific requirement of keeping Psychotherapy Notes “separated” from the rest of the medical record, HIPAA does not explicitly define what is meant by the word “separate.” Consequently, we suggest that therapists keep their Psychotherapy Notes physically segregated in some fashion, from any other information contained in the file.
Because Psychotherapy Notes, as they are defined by HIPAA, are not part of the patient’s medical record, they should not be released by the therapist in response to a request for a release of that record. In order for a therapist to release Psychotherapy Notes, he or she is required to obtain a specific authorization from the patient for their release.23 There is an important exception that must be mentioned here. In circumstances where a subpoena is served upon a therapist, the therapist would be required to produce his or her Psychotherapy Notes, regardless of the fact that he or she kept them separate from the medical record. For example, a civil subpoena in California will ordinarily demand the production of any and all materials that have been created by the therapist in relation to the particular patient.24 That means, “…any copy of books, documents, other writings, or electronically stored information…maintained by [the therapist]….”25
Notwithstanding the complexity of HIPAA, the intent of this writing is not to suggest that writing progress notes is a difficult or daunting task. To the contrary, writing progress notes can be a simple and straightforward process that demands very little time. Therapists should bear in mind that the content, length and complexity of progress notes should vary, depending upon the particular therapy session. In other words, an event that transpires in a given therapy session may be especially critical or noteworthy, in comparison to another session. For example, an individual may report the experience of significant symptomatic relief, or, may experience a breakthrough in his or her relationship with a family member. Alternately, a patient may arrive in a state of crisis or suddenly disclose information concerning child or elder abuse or a serious threat of violence against another person. These and other events should be the subject of thorough documentation by the therapist. On the other hand, many, or perhaps most therapy sessions can be adequately documented in a very brief fashion.
One of the keys to writing progress notes is developing a writing style that is simple and consistent and that takes into consideration the basic purpose and function of these notes. In sum, progress notes are brief, written notes that are utilized to document a patient’s treatment and various related issues, including treatment planning, documenting the necessity of treatment and demonstrating the appropriateness, competency and yes, hard work of the therapist.
1 California Business & Professions Code, §§ 4982(v); 4992.3(w) and 4999.90(v). Under California law, the identical standard is applicable to Marriage and Family Therapists, Clinical Social Workers, and Professional Clinical Counselors. See also, California Health & Safety Code, § 123130. Although California law does not mandate that specific content exist in a treatment record, it provides a description of minimally required areas of content when a therapist provides a patient with a summary, rather than a copy of their treatment record.
2 The terms “treatment record” and “medical record” are used interchangeably in this article; see generally, Records & Recordkeeping articles on the CAMFT website, www.CAMFT.org.
3 California Business & Professions Code, §§ 4982(v); 4992.3(w) and 4999.90(v).
5 CAMFT Code of Ethics § 5.3
6 National Association of Social Workers Code of Ethics, § 3.04(a) & (b); see also, American Psychological Association Ethical Principles of Psychologists & Code of Conduct, § 6.01.
7 See generally, Moline, Mary E., Williams, George, T., Austin, Kenneth, M., Documenting Psychotherapy; Essentials for Mental Health Professionals, Sage Publications, 1998.
8 Kettenbach, G. (2004), Writing SOAP Notes: With Patient/Client Management Formats, 3rd Ed., F. A. Davis Co.
10 Cameron, Susan, Turtle-Song, Imani, (2002), “Learning to Write Case Notes Using the SOAP Format,” Journal of Counseling & Development, vol. 80, pp. 286-292.
11 Id., at 287.
14 Id. at 288-289.
15 Id. at 289.
16 45 CFR § 164.524; see Tran-Lien, Ann, (2014), “A Patient’s Right to Access Mental Health Records Under HIPAA,” The Therapist, Sept./Oct.; see also, Jensen, David, (2003), “HIPAA Psychotherapy Notes and You,” The Therapist, Jan. /Feb. (This article provides additional detail and explanation concerning Psychotherapy Notes, including permissible uses and disclosures.)
18 See HIPAA articles and sample forms on the CAMFT website: www.CAMFT.org.
19 45 CFR § 164.501.
22 Id. (emphasis added). Therapists should utilize the appropriate version of the HIPAA Privacy Practices form, depending on whether they do or do not use "psychotherapy notes," as they are defined under HIPAA.
23 45 CFR § 164.508.
24 California Code of Civil Procedure § 1985.3.