Can Your Licensing Board Subpoena Your Therapy Records?

It’s stressful enough to learn that your nursing license board plans to investigate you in response to a complaint. Finding out that the board intends to subpoena your therapy records feels invasive and excessive. You shared everything in your sessions because your therapist promised you it was all confidential and HIPAA-protected.

Your therapist was right only up to a point, it turns out. In general, HIPAA protections do apply to therapy visits, as does the legal principle of psychotherapist-patient privilege. But there are exceptions. These vary from state to state.

Given the nuances in the laws covering professional nurses’ right to keep their therapy sessions private and confidential, if your board is subpoenaing — or threatening to subpoena — your records, you need to contact the Professional License Defense Team at the LLF National Law Firm right away. We’ll make sure your board complies with the laws in your state and fight to keep your therapy records sealed. Call us at 888.535.3686, or send us a message online.

Releasing Therapy Records: What the Law Says

The Health Insurance Portability and Accountability Act (HIPAA) offers broad protections for patient privacy, but it does carve out exceptions, including for professional licensing investigations. There are no other national laws that would override the HIPAA exception for licensed healthcare providers.

That leaves the question up to the states. These have the authority to set their own laws covering the release of medical records, including therapy records, to a licensing board when a nurse is under investigation. For example,

• In California, where therapy records in general have strong privacy protections, the licensing board cannot obtain a nurse’s records without the nurse’s consent. If the nurse refuses, the board has to make the case to a judge that the records are relevant and necessary and ask for a court order for their release.
• On the other side of the country, in Florida, the process is slightly different. As in California, state law allows the Board of Nursing to subpoena a nurse’s records during an investigation and requires the nurse’s consent to their release. If consent is withheld, the board can ask a circuit court judge to review the nurse’s therapy records privately and decide whether to release them, or parts of them, to the board.
• Across the sea, Hawaii also respects psychotherapist-patient privilege, but the state explicitly lists two situations where that privilege doesn’t apply: when a nurse’s mental health is part of the case (for instance, if the nurse claims their mental condition explains their alleged misconduct), and when the board has reason to believe the nurse planned or facilitated a crime. If either criterion is met, the therapist has to release the nurse’s therapy records if the board subpoenas them.

Fifty States, One Professional License Defense Team

With so much on the line for you professionally — and such potential for serious violations of your privacy — you need the LLF National Law Firm’s Professional License Defense Team on your side. If your state’s nursing license board is threatening to subpoena your therapy records, contact us now by calling 888.535.3686 or sending us a message online.