Are AI Therapy Notes Psychotherapy Notes? What HIPAA's Definition Means
Usually not. HIPAA's "psychotherapy notes" are a narrow, separately kept category. The note an AI scribe drafts for the chart, with symptoms, interventions, progress and plan, is a progress note, and that changes who can see it and when you need authorization.
Want to see an AI-drafted progress note first? Open a fictional note in the MentalNote editor, no sign-up needed.
General information about the HIPAA Privacy Rule, not legal advice. State law can be stricter; check it and your licensing board's rules.
The short answer
- Progress notes are the record. They document what happened in the session, your assessment and the plan, and they support treatment, coordination and billing.
- Psychotherapy notes are optional and narrow. They are a mental health professional's notes documenting or analyzing session conversation, kept separate from the rest of the record.
- Summaries are never psychotherapy notes. HIPAA excludes any summary of diagnosis, functional status, treatment plan, symptoms, prognosis and progress to date. That is exactly what a progress note, and an AI-drafted note for the chart, contains.
- So an AI-drafted chart note is a progress note. Treat it like any other part of the record.
The HIPAA definition (45 CFR 164.501)
The definition sits in the Privacy Rule's definitions section. In full:
"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."
Three conditions have to be met, and a list of content is carved out:
- Who: a health care provider who is a mental health professional.
- What: documentation or analysis of the conversation in a counseling session. Group, joint (for example couples) and family sessions count, not only individual sessions.
- Where: separated from the rest of the individual's medical record. Notes mixed into the chart do not qualify.
- Never included: medication prescribing and monitoring, session start and stop times, the modalities and frequency of treatment, clinical test results, and summaries of diagnosis, functional status, treatment plan, symptoms, prognosis and progress.
Why the label matters: access and authorization
| Question | Progress notes (the record) | Psychotherapy notes (kept separately) |
|---|---|---|
| Client access | Part of the record a client can generally inspect and get a copy of (45 CFR 164.524). | Excluded from the HIPAA right of access (164.524(a)(1)(i)). You may choose to share; state law may give access. |
| Treatment, payment, operations | Can be used and disclosed for treatment, payment and health care operations without a separate authorization, subject to the minimum-necessary rule where it applies. | Need the client's written authorization for most uses and disclosures (164.508(a)(2)), with narrow exceptions. |
| Health plans | Reviewed for authorization and payment. | A health plan cannot condition enrollment, eligibility or payment on an authorization to release them (164.508(b)(4)). |
| Authorization form | Standard authorization rules. | An authorization for psychotherapy notes can be combined only with another authorization for psychotherapy notes (164.508(b)(3)(ii)). |
| Information blocking | Electronic progress notes generally fall within EHI when they meet the 45 CFR 171.102 definition. Access, exchange and use remain subject to applicable law and the information-blocking rules and exceptions. | Excluded from the definition of electronic health information (45 CFR 171.102). |
The exceptions in 164.508(a)(2) are narrow. Without an authorization, the originator may use the notes for the client's treatment; the covered entity may use or disclose them for its own supervised mental health training programs and to defend itself in a legal action brought by the client; and they may be disclosed where the rule requires or permits it, such as to HHS for a compliance review, as required by law, for health oversight of the originator, to a coroner or medical examiner, or, consistent with applicable law and ethical standards, when the covered entity believes in good faith that disclosure is necessary to prevent or lessen a serious and imminent threat to a person or the public, and the disclosure is to someone reasonably able to prevent or lessen that threat (45 CFR 164.512(j)(1)(i)). Court orders and state privilege rules are separate questions: ask counsel.
Where an AI scribe fits
Using AI does not decide the legal category: the note's content and separation from the medical record do. A chart draft summarizing symptoms, assessment, progress and the plan is a progress note. Before filing an AI draft, compare it with the session, correct unsupported statements and speaker attribution, and remove private process reflections that do not belong in the chart. Keep any qualifying psychotherapy notes separate under your practice's policy; a template label alone does not create that protection. For the general access and disclosure comparison, see progress notes vs psychotherapy notes.
- Write the progress note for its readers. Payers, treating providers and the client may lawfully receive it, subject to the rules that apply to the disclosure. Keep it factual and clinically relevant, and remove detail that serves no purpose.
- Keep any psychotherapy notes somewhere else. If you record your own working hypotheses or process observations, keep them apart from the chart. Many EHRs have a separate area for this; check how yours keeps it apart from the record before relying on it.
- Don't move record content into private notes. Risk assessment, the diagnosis, the plan and progress belong in the progress note. Putting them in separate notes does not make them psychotherapy notes and leaves the record incomplete.
- Recordings and transcripts are PHI. The definition does not mention audio or transcripts. Treat them as protected health information, keep them only as your records policy allows, and use a vendor that signs a Business Associate Agreement.
Example: one session, two kinds of notes (fictional)
Fictional example written for this page. The client and every detail are invented; there is no real PHI here.
Progress note, in the record (fictional client)
Adult client · Individual session 6 · 50 minutes · DAP format
Data: Client reports low mood on four of seven days since last session, down from most days at intake, and two arguments with a partner about household tasks. Completed the activity schedule on five days. Engaged, affect constricted but brighter when discussing the planned weekend walk. Clinician used cognitive restructuring on the thought "I always ruin things" and role-played a request using "I" statements.
Assessment: Depressive symptoms improving with behavioral activation; interpersonal conflict is a current trigger. Screened for suicidal ideation; client denied current thoughts, intent or plan.
Plan: Continue weekly CBT. Practice one "I" statement request before next session. Keep the activity schedule. Next session in one week.
Separate psychotherapy note, kept apart from the record (fictional)
Clinician's own notes · not part of the chart
Wondering whether the "I always ruin things" theme links to how the client described a parent's criticism in session 2. Noticed the client apologized to me twice when disagreeing. Explore the pattern of apologizing before asserting a need, gently, once the alliance is stronger.
The progress note carries everything a reader of the record needs: symptoms, interventions, response, risk screening and the plan. The separate note holds only the clinician's analysis of the conversation. If the clinician had put that paragraph in the chart, it would be part of the record, not a psychotherapy note.
How MentalNote fits
MentalNote drafts progress notes for the record from a recorded session (with your client's consent) or, in the Word add-in, from a summary you type. The app instructs the AI not to add interventions, diagnoses or risk statements the session did not contain, but AI can still make mistakes, so you review, edit and sign every draft. See AI therapy notes and AI progress notes for therapists.
MentalNote is HIPAA-compliant, with a BAA included on every plan. The free plan includes 5 web-app scribe sessions a month with no credit card; Premium is $99/month or $990/year (pricing). For a longer comparison of the two note types, read progress notes vs psychotherapy notes; for the glossary entry, see psychotherapy notes.
Psychotherapy notes and AI notes: common questions
Which parts of a therapy note can never be psychotherapy notes?
Under 45 CFR 164.501, psychotherapy notes never include medication prescription and monitoring, session start and stop times, the modalities and frequencies of treatment, results of clinical tests, or any summary of diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date. Those belong in the progress note.
Is a note drafted by an AI scribe a psychotherapy note?
Usually not. A note drafted for the chart that summarizes symptoms, interventions, progress and the plan is a progress note: it is part of the record, and HIPAA's definition of psychotherapy notes expressly excludes those summaries. Calling a note a psychotherapy note does not make it one; it must also be kept separate from the rest of the record.
Can clients see their psychotherapy notes?
HIPAA excludes psychotherapy notes from the individual's right of access (45 CFR 164.524(a)(1)(i)), so a client cannot demand them under HIPAA. A provider may still choose to share them, and state law may give clients a right to see them. Progress notes are part of the record that clients generally can access.
Can an insurer require psychotherapy notes?
Most uses and disclosures of psychotherapy notes need the client's written authorization (45 CFR 164.508(a)(2)), and a health plan cannot make enrollment, eligibility or payment conditional on an authorization to release them (45 CFR 164.508(b)(4)). Payers review the progress notes and other record content instead.
Do I have to keep psychotherapy notes?
No. HIPAA does not require them. Many therapists keep only progress notes. If you do keep separate notes for your own analysis of the session, keep them apart from the record and out of the progress note.
Does MentalNote write psychotherapy notes?
MentalNote drafts progress notes for the clinical record (SOAP, DAP, BIRP, GIRP, PIE, SIRP and other formats) from a recorded session or, in the Word add-in, from a summary you type. You review, edit and sign every draft. If you keep separate psychotherapy notes, keep them outside the record.
Draft the progress note. Keep your own thoughts yours.
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