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Private Provider Information

Fact Sheet for Mental Health Care Professionals

Supporting Individuals' VA Disability Claims

Information from you, as a mental health professional, is vitally important to support claims for VA benefits. VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), (PDF) legally permits you to make the necessary disclosures of information consistent with applicable laws, including the Health Insurance Portability and Accountability Act (HIPAA), and the Substance Abuse Act. 1

VA's Release Form Authorizes Your Disclosure

Individuals complete and sign the VA Form 21-4142 when they file a disability application. This form legally authorizes you and other professionals to release medical records, even if your name(s) are not specifically listed. 2

A copy, facsimile or electronically transmitted version of this signed form is acceptable. 3

You are complying with all relevant federal and state laws and regulations when you release your patient's medical records as authorized by the VA Form 21-4142.

When evaluating mental disorders, information from treating sources is essential to accurately assess the onset and severity of claimants' impairments and their effect on functional capacity. This applies to new claims, determinations of continuing eligibility for current beneficiaries, and appeals. With your timely response to requests for information, your patients may more quickly start (or continue) to receive benefits from VA. Without your records, the decision may be made based on the results of a one-time consultative examination by a medical professional unfamiliar with your patient or made based on evidence already of record.

Full Disclosure Is Permitted

The signed VA Form 21-4142 specifies that the authorization permits you to disclose all of your patient's medical or educational information to the Department of Veterans Affairs (VA) for the time period requested. That means you do not have to apply the "minimum necessary standard" before disclosing medical records. 4 VA must consider the claimant's complete, relevant medical record for at least 12 months prior to the claim, including assessment of the combined effect of multiple impairments that individually may not be severe. In addition, both HIPAA and the VA Form 21-4142 permit you to disclose "information created within 12 months after the date (the release is) signed." 5

Psychotherapy Notes, as Defined by HIPAA, Can Be Protected

VA recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called "process" or "session" notes) and does not need the notes. As HIPAA defines the term, "psychotherapy notes means notes recorded in any medium by 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 exclude 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."

If you keep psychotherapy notes separate from your other medical records, you can send the set of records without the psychotherapy notes. If you do not keep psychotherapy notes separate from other parts of the medical records, you can legally disclose all of the records. However, you can choose to black out or remove the parts of the records that would be considered psychotherapy notes if kept separately. Another option is to prepare a special report detailing the critical current and longitudinal aspects of your patient's treatment and their functional status. 6

Your Information Will Not Be Re-Disclosed Without Consent

VA will not re-disclose medical records it receives to other entities or individuals, without prior written consent, except in the very limited manner permitted or required by federal law and regulations. 7

References

  1. VA fully complies with the provisions regarding disclosure of medical and other information under P.L. 104-191 HIPAA; 45 CFR Parts 160 and 164; 42 USC § 290dd-2, and other federal state laws and regulations including the Substance Abuse Act (42 CFR Part 2), and applicable state law.
  2. Both HIPAA and 42 CFR Part 2 permit authorization forms to include "the general designation of the program or person permitted to make the disclosure" [45 CFR 164.508(c)(1)(ii)]. "This will permit a patient to consent to disclosure from a category of facilities or from a single specified program" [42 CFR Part 2, 52 Federal Register 21799 (June 9, 1987)].
  3. See Health and Human Services (HHS) frequently asked questions (FAQs) at: http://answers.hhs.gov/.
  4. Providers can rely on the authorization to define what can be released (45 CFR 164.502(b) (2) (iii)). The signed VA Form 21-4142 permits full disclosure of all requested information. See the HHS FAQs.
  5. See the HHS FAQs.
  6. 45 CFR § 164.501.
  7. Privacy Act of 1974, Freedom of Information Act, and federal regulations per 20 CFR 401.
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