Demystifying "Open Notes" & The Cures Act: A Practical Guide for Texas LPCs

Let’s be honest: we went into counseling to help people, not to become federal compliance experts.

If you’ve been in Texas therapist Facebook groups lately, you’ve probably seen threads about the 21st Century Cures Act and "Open Notes" (the critical date for mental health providers and LPCs to be compliant was April 5, 2021). With the federal government entering an active enforcement phase, the days of "waiting to see how this plays out" are officially over.

Take a deep breath. The Cures Act does not mean you have to hand over your private raw processing thoughts to your clients, nor does it ruin clinical boundaries. It simply shifts our documentation from a model of "available upon request" to "transparent by default."

Here is what Texas Licensed Professional Counselors (LPCs) actually need to know, complete with real-world examples and clinical strategies.

The Core Mandate: What is "Information Blocking"?

The Cures Act prohibits information blocking. In plain English, if you use an Electronic Health Record (EHR) system with a client portal (like SimplePractice or TherapyNotes), clients must have immediate, free, electronic access to their finalized clinical notes and records. You cannot require them to call you, sign extra forms, or pay a fee just to see a standard progress note.

The Golden Rule: Progress Notes vs. Psychotherapy Notes

This is where many Texas LPCs lose sleep unnecessarily. Federal law explicitly relies on HIPAA’s distinct definitions to draw a hard line down the middle of your digital filing cabinet:

Progress Notes (The "Must-Share" Record)

These are your official medical records (e.g., SOAP, DAP, or EMDR session notes). They document session times, modalities used, clinical interventions, objective behavioral observations, and treatment plan progress.

The Rule: These must be accessible via the client portal without delay once finalized.

Psychotherapy Notes (The "Keep-Out" Record)

These are your private, conversational analyses. This is where you document your raw hypotheses, thoughts on transference/countertransference, or personal observations to process before the next session.

The Rule: These are strictly exempt from the Cures Act. However, to keep this protection, they must be kept physically or electronically separate from the rest of the client's medical record.

⚠️ The Texas Nuance: While the federal Cures Act won't force you to put psychotherapy notes on a client portal, remember that the Texas Behavioral Health Executive Council (BHEC) and state laws grant clients broad legal rights to request their entire record formally. Strategy: Write every note assuming the client, a judge, or a licensing board will eventually read it.

The "Preventing Harm" Exception (And What It Isn't)

Can you block a note because you think it will hurt a client's feelings, make them angry at you, or damage the therapeutic alliance? Absolutely not. Federal regulators have explicitly stated that emotional friction or client disagreement is not a legal reason to block a note.

You can only block a note from the portal under the Preventing Harm Exception if you have a reasonable, individualized belief that releasing it will result in substantial physical harm or death to the client or someone else (e.g., a client experiencing acute, severe paranoia where reading your formal assessment could trigger immediate self-harm). If you use this exception, you must thoroughly document your exact clinical rationale inside the chart.

Translating Rules into Practice: Documentation Examples

The best strategy for Open Notes is to write objectively and transparently. Let's look at how to reframe common clinical observations so they remain therapeutically sound and respectful to a reading client.

Example A: Addressing "Resistance" or Boundaries

❌ Old Way (Prone to conflict): "Client was highly manipulative and resistant during the session, continuously trying to violate the late-cancellation fee policy."
• New Way (Objective & Behavioral): "Client expressed frustration regarding the practice's late-cancellation fee. Therapist reviewed the signed informed consent boundaries. Client redirected the conversation to personal goals but remained visibly tense."

Example B: Documenting Personality or Interpersonal Patterns

❌ Old Way (Subjective labeling): "Client displayed borderline tendencies, catastrophizing a minor argument with their spouse."
• New Way (Descriptive processing): "Client reported a high level of distress regarding a recent verbal argument with their spouse, noting a fear of abandonment. We explored emotional regulation skills to address black-and-white thinking patterns."

Actionable Strategies for Your Practice Today

Audit Your EHR Settings: Check your software settings. Ensure your progress notes are configured to release automatically upon signing, and verify that your system has a dedicated, separate tab for "Psychotherapy Notes" if you choose to keep them.
Lean Into "Collaborative Documentation": Turn compliance into a clinical tool. Try wrapping up the last 5 minutes of a session by reviewing the treatment plan milestones together. Say: "Here is what I’m putting in our progress note today regarding your grounding skills. How does that match your experience?" This completely removes the "mystery" of the computer screen.
Update Your Informed Consent: Don't let a client discover Open Notes by accident. Add a brief section to your intake paperwork explaining that they have immediate access to their progress notes via the portal, and use it as an opportunity to invite open dialogue about what they read.

...supervision matters!