Your rights regarding access to mental health records

YOUR RIGHTS REGARDING ACCESS TO
MENTAL HEALTH RECORDS

An individual has a right to confidentiality with respect to his or her own mental health records. This right of confidentiality provides that, in most cases, only the individual, his or her guardian, and the individual's treatment providers may know the content of the record. However, whether or not an individual has the right to access his or her own records depends on what laws are applicable.

I. LAWS GOVERNING THE RELEASE OF RECORDS

Inpatient facilities operated, by the Department of Mental Health (DMH), contracted for by DMH, or licensed by DMH and Intensive Residential Treatment Programs (IRTPs)

At mental health inpatient facilities operated by DMH, contracted for by DMH, or licensed by DMH and at IRTPs for adolescents, patient access to and release of medical records are governed by a state law and corresponding DMH regulations. In certain cases, DMH policy and guidelines also apply.

An individual or guardian has a right to "inspect" the individual's mental health record, unless the DMH Commissioner or designee has determined that inspection will result in "serious harm" to the individual. An individual has a right to obtain a copy of the record when it is in the individual's "best interest." The DMH regulations list certain circumstances in which the best interest standard is automatically met. They include the following:

  • When the record will enable the individual, or someone acting on the individual's behalf, to pursue a claim, suit or other legal remedy, to enforce a right, or to defend him or herself against such action;

  • To ensure that the individual's civil rights are protected; or

  • To enable the individual or someone acting on the individual's behalf to obtain benefits or third-party payment for services rendered.

The expectation of DMH is that: "In most instances, individuals should be permitted to review their records and/or obtain a copy."

For DMH operated inpatient facilities, private inpatient units located within a DMH operated facility, and any private inpatient facility which has contracted with DMH to follow a recent DMH policy regarding patient rights, DMH provides further direction regarding the "best interest" analysis. For these facilities, DMH defines disclosure as being in the individual's "best interest" unless:

  • There would likely be serious harm to the individual, defined as physical or psychological harm which is tangible or concrete, and not hypothetical or insignificant, as a result of disclosure, as determined by a clinician who has reviewed the record and is knowledgeable of the individual;

  • The likelihood of harm as a result of disclosure may not be satisfactorily addressed through a staff person reviewing the records with the individual;

  • The denial and reasons for it are reviewed with the individual; and

  • The denial and reasons for it are noted in the individual's record.

The facility's chief executive officer or designee must review all decisions to deny disclosure.

Community programs operated by DMH, contracted for by DMH, or licensed by DMH

At community programs operated, by DMH, contracted for by DMH, or licensed by DMH, access to and release of mental health records is governed by DMH regulation. This regulation provides an individual the absolute right to inspect and copy the record upon request.

Residential programs licensed by the Office of Child Care Services (OCCS)

An individual may be able to access the records kept by a residential program licensed by OCCS (formerly the Office for Children). Such programs must have written procedures regarding access to the record by the resident (taking into account the resident's capacity to understand), parent(s), persons other than the parent who has custody, and persons not directly related to the service plan. The procedures must identify the person or persons, if any, whose consent is required before information in the resident's record may be released.

Facilities operated or licensed by DPH

An individual receiving inpatient or outpatient services at hospitals or clinics operated or licensed by the Department of Public Health (DPH) (and not operated or licensed by DMH) has a right to access his or her records. These facilities must allow the individual to inspect and copy their mental health records; there is no "best interest" standard. There is one exception to the right of an individual to access records under DPH law: when the records have been generated by a psychotherapist. This exception is described in the following section, entitled "Other health care providers."

Other health care providers

An individual receiving services from a health care provider, other than those providers who fall into any of the above categories, has a right to access his or her entire record. The individual's "authorized representative" is also entitled to the record. One exception exists to this general rule: a psychotherapist may prohibit access to that portion of the mental health record generated by the psychotherapist, if the psychotherapist believes that access to those specific records would "adversely affect the patient's well-being." If a psychotherapist limits access, he or she must provide the individual with a summary of the psychotherapy records. However, the psychotherapist must provide the entire record to the individual's attorney or to another psychotherapist if the individual consents to its release.

II. REQUESTING A RECORD AND CHALLENGING THE DENIAL
OF A REQUEST FOR RECORDS

Requests for mental health records should be made in writing to the appropriate body, as outlined below. If an individual believes that a request for a copy of the records has been improperly denied, he or she may seek review of that decision. The individual should make all requests and subsequent contacts in writing and keep copies of all correspondence.

Inpatient facilities operated, funded, or licensed by DMH and IRTPs

An individual may request a record from an inpatient facility operated by DMH, contracted for by DMH, or licensed by DMH or an IRTP by writing to the facility director, who shall be the DMH Commissioner's designee to determine whether access to records is appropriate. If the facility director denies the request, the individual may appeal the decision to the DMH Commissioner. The Commissioner may be reached at 25 Staniford Street, Boston, MA 02114, (617) 626-8000.

Community programs operated, licensed, or funded by DMH

An individual may request a record from a community program operated by DMH, contracted for by DMH, or licensed by DMH by writing to the program director. If the program director denies the request, the individual should appeal the decision to the DMH Commissioner. The Commissioner may be reached at 25 Staniford Street, Boston, MA 02114, (617) 626-8000.

Residential program licensed by OCCS

An individual may request a record from OCCS licensed residential program by writing to that person designated in the program's procedures. If the request is denied, the individual may seek a remedy pursuant to the program's procedures or file a complaint with the OCCS Regional Director for the region within which the program is located.

Facilities operated or licensed by DPH

An individual may request a record from a facility operated or licensed by DPH by writing to the head of the facility. If the request is denied, the individual may file a complaint with the DPH Division of Health Care Quality, 10 West Street, 5th Floor, Boston, MA 02111, (617) 727-5860.

Other health care providers

An individual may request a record from a health care provider by writing to that provider directly. If the request is denied, the individual should seek legal advice. The individual may also file a complaint with the division of the Board of Registration which licenses that provider.

III. FEES FOR COPYING

Facilities and providers supplying copies of an individual's mental health record are entitled to charge a reasonable fee. Inpatient facilities licensed by DPH or DMH may charge no more than the actual cost of copying. By department regulation, the same standard applies to community programs licensed or contracted for by DMH.

Facilities and providers may waive the fee in special circumstances, such as when an individual cannot afford to pay. If the records are needed to support a claim or appeal under any provision of the Social Security Act or any federal or state needs-based benefit program, such as SSI, SSDI, EAEDC, or Medicare, a hospital licensed by the DPH or supported by the Commonwealth to any degree may not charge a fee for copying.

IV. AMENDING THE RECORD

While an individual may not delete information in his or her mental health record, in certain cases he or she may add information. Under Massachusetts law, agencies of the executive branch of government, such as DMH, are considered "holders . . . of personal data" and must allow an individual to correct or amend his or her record when the individual so requests. If the holder and the individual disagree as to whether a change should be made, the holder must ensure that the individual claim is noted and included as part of the individual's record and included in any subsequent disclosure or dissemination of the record. Thus, DMH operated inpatient facilities and community programs, and DPH operated facilities, must accept an individual's additions to the record and include them whenever forwarding the record.

Other kinds of "holders . . .of personal data" must also allow an individual to correct or amend his or her mental health record. If a facility has a contract or arrangement with one of the agencies covered by this law, the facility is considered a "holder" of those records which the facility maintains because of the contract or arrangement. Thus, many of the types of records discussed in this brochure could be amended by the individual including those held at DMH licensed or contract inpatient facilities and community programs, IRTPs, OCCS licensed group care facilities, and DPH licensed facilities.

Further, facilities and programs operated, by DMH, contracted for by DMH, or licensed by DMH must allow for information to be added to an individual's inpatient record. Inpatient facilities are required to include in the individual's record, among other information, "any other information deemed necessary and significant to the care and treatment of the patient." Community programs are required to maintain records containing "accurate, complete, timely, pertinent and relevant information. If an individual or legally authorized representative believes that the record contains inaccurate or misleading information, he or she may prepare with assistance, if requested, a statement of disagreement which shall be entered in the record."

When amending his or her record, an individual should request that the additional information be placed next to the material in the record which he or she seeks to modify or correct. This request is important as medical records are often extensive and a letter of correction could easily be buried in the stack of papers.

Mental Health Legal Advisors Committee

294 Washington Street, Suite 320

Boston, MA 02108

(617) 338-2345

(800) 342-9092

Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.