Legal Corner: Handling requests for patient records

How in-network and out-of-network providers should respond to a request for records from an insurance company.

Every year, the APA Practice Organization hosts a Practice Leadership Conference (PLC) in Washington, D.C., bringing psychologists from Canada, the United States and its territories together to hone their advocacy and leadership skills. During this year’s PLC, the attorneys in Legal and Regulatory Affairs convened a town hall meeting to answer some of the legal challenges faced by psychologists*. Audience members were invited to submit questions in advance, as well as ask them on the spot. This is the third issue of “Legal Corner” featuring a question from the forum that has broad impact.

Q: As a practicing psychologist, is there a difference in my obligation to release records to insurance companies when I am in network vs. out of network?

A: The simple answer is, “Yes” but with a few caveats.

Insurance companies may request patient records, and the reasons for such records requests are varied: questions regarding medical necessity, incorrect coding, ACA mandated Risk Adjustment Audits, and, in the worst-case scenario, suspicion of fraud.

Whether you are in network or out of network, here is how you should respond to these requests:

  • In-network providers
    Psychologists who are in a company’s provider network have a contractual obligation with the insurance company. The details are enumerated in the provider agreement, and are usually supplemented on the provider section of the company’s website. The insurance company typically agrees to provide referrals and to pay for medically necessary patient care at a predetermined rate. The psychologist agrees to provide medically necessary care, keep patient records in accordance with the insurance company’s standards (psychologists should also follow their state’s law and APA record keeping guidelines), and provide records upon request.

    Failure to respond to a records request can result in delay of claim processing, denial of payment and even collection of payment already rendered. Psychologists should refer to their contract for information regarding their obligations and remedies.
  • Out-of-network providers
    Psychologists who are not on an insurance company’s panel have no contractual obligation to the company. The patients who use their out-of-network benefits to pay for the psychologist’s services, however, do have to follow their insurance company’s rules. Since the psychologist in turn has a duty to the patient, the psychologist should not ignore requests for records. Psychologists who refuse to provide records risk doing harm to the patient through denial of claims, which could lead to interruption of services.
  • All providers
    Since the probability exists that records may be requested at some point, whether in or out of network, it is important for psychologists to remember certain fundamentals.  First, make sure the informed consent form signed by the patient contains language giving you consent to release information to the insurance company. Second, assume that someone else will eventually ask to read the record, so consider keeping “lean and mean” records and avoid documenting overly sensitive details. If you need more detailed notes for a particular patient or even just a session or two, you might want to keep separate psychotherapy notes, which insurance companies do not have a right to see. For more guidance on record keeping, see our "lean-and-mean" article.

Psychologists who are unsure of the reason behind a records request should contact the insurance company representative to get clarity.   

Disclaimer: *Legal issues are complex and highly fact-specific and state-specific.  They require legal expertise that cannot be provided in this article.  Moreover, APA/PO attorneys do not, and cannot, provide legal advice to our membership or state associations.  The information in this article does not constitute and should not be relied upon as legal advice, and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions