Will I Get to See What My Teenager Says in Therapy?

Usually you can see a good part of the record, but probably not the therapist's own notes on what was said in sessions. And in a few situations you are not entitled to the record at all.

This page covers the federal rule, the HIPAA Privacy Rule, and what it says about parents and teenagers. It cannot tell you what your state adds, and on this question state law often decides. Where that happens, the federal rule says so itself.

The starting point: a parent stands in the teenager's shoes

The rule calls this being a "personal representative". The regulation, 45 CFR 164.502(g)(3)(i), says that if a parent has authority under applicable law to make health care decisions for an unemancipated minor, a covered provider "must treat such person as a personal representative," with respect to information relevant to that role.

The HHS Office for Civil Rights explains what that means in practice: "The personal representative stands in the shoes of the individual and has the ability to act for the individual and exercise the individual's rights." That includes the right to inspect and get a copy of the record under 45 CFR 164.524.

The same guidance says that "in most cases" a parent is the minor's personal representative, "because the parent usually has the authority to make health care decisions about his or her minor child."

If the provider grants a request, the regulation gives it 30 days from receipt to act, with one extension of up to 30 more days if it tells you in writing why.

The three situations where you are not the representative

The regulation lists three exceptions. In each, the teenager has the authority over the information about that particular care, not the parent. Quoted from 45 CFR 164.502(g)(3)(i), complete:

(A) The minor consents to such health care service; no other consent to such health care service is required by law, regardless of whether the consent of another person has also been obtained; and the minor has not requested that such person be treated as the personal representative;

(B) The minor may lawfully obtain such health care service without the consent of a parent, guardian, or other person acting in loco parentis, and the minor, a court, or another person authorized by law consents to such health care service; or

(C) A parent, guardian, or other person acting in loco parentis assents to an agreement of confidentiality between a covered health care provider and the minor with respect to such health care service.

HHS gives an example for the first one that applies directly here: "A State law provides an adolescent the right to obtain mental health treatment without the consent of his or her parent, and the adolescent consents to such treatment without the parent's consent." Whether your state has such a law, and from what age, is exactly the part this page cannot answer.

The third exception is the one a parent can walk into without noticing. HHS's example is a physician asking the parent of a 16-year-old whether they can talk to the child confidentially, and the parent agreeing. If a therapist asks you something similar at intake, that agreement has consequences under the rule. Ask what it covers before you say yes.

Where state law takes over

Even inside those exceptions, the federal rule defers. 45 CFR 164.502(g)(3)(ii) says a provider may disclose a minor's information to a parent if, and to the extent, state or other law permits or requires it, and may not if, and to the extent, state or other law prohibits it. "State or other law" there includes case law.

Where state law is silent and one of the three exceptions applies, the rule leaves it to the provider. Access can be given or refused, "provided that such decision must be made by a licensed health care professional, in the exercise of professional judgment."

So there are three possible answers, and the federal rule alone does not tell you which one you are in.

Session notes are a separate category

This is the part most parents are not told. The federal right of access, at 45 CFR 164.524(a)(1)(i), excludes psychotherapy notes. Because a parent who is the personal representative exercises the teenager's own right, the exclusion applies to the parent too.

The definition, at 45 CFR 164.501, complete:

Psychotherapy notes means 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. Psychotherapy notes excludes 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.

Two things follow from that wording. The notes only count if they are kept separate from the rest of the record. And the second sentence lists what stays in the ordinary record: diagnosis, the treatment plan, symptoms, progress to date, session times and how often sessions happen. The federal right of access covers those, subject to everything above.

A denial on the ground that something is psychotherapy notes is listed in 164.524(a)(2) as one that carries no right of review.

The safety exception

There is one more route by which a provider can decline. HHS's mental health guidance says the rule "allows a health care provider to determine, based on professional judgment, that treating someone as a patient's personal representative for HIPAA purposes would endanger the patient, and to refuse to treat the person as a personal representative under those circumstances." It applies to minors and adults alike.

An illustration

This is a made-up example, not a real family. Henrietta is 15 and starts seeing a therapist your insurance pays for. At the first appointment the therapist asks whether you are comfortable with sessions being confidential, and you agree.

Under exception (C), that agreement can mean you are not Henrietta's personal representative for that care. If your state's law expressly lets parents see such records, the provider may still give you access. If it expressly bars it, the provider may not. If it says nothing, a licensed professional at the practice decides. In none of those cases does the federal right of access reach notes kept separately about what she said in sessions.

What I would ask before the first appointment

I would ask the practice three things, and ask for the answers in writing. What will you tell me, and what will you not? Do you keep psychotherapy notes separately from the main record? And what does our state's law say about a minor consenting to this kind of care?

None of this is a reason to avoid therapy, and none of it says you should push for access. A teenager who knows what stays private may say more in the room. The point is to know the arrangement before you agree to it, rather than finding out when you ask.