New rule prohibits ‘information blocking’ & allows patients greater access to records

By Catherine Robertson Souter
May 11th, 2021
Jennifer Warkentin
Jennifer Warkentin, Ph.D., MPA director of professional affairs

On April 5, a new rule issued by the Department of Health and Human Services took effect that could impact mental health care professionals’ use of electronic health records (EHR).

The ruling prohibits “information blocking,” or any practice that might restrict a patient’s or other health care entity’s ability to immediately access health records.

The rule does not change any HIPAA patient harm and privacy protections, but it does eliminate the 30-day allowance provided in that act for responding to patients’ requests for access to their electronic records.

Enacted as part of the 2016 21st Century Cures Act, the information blocking rule was part of a follow up issued by the Office of the National Coordinator for Health Information Technology (ONC), the agency that coordinates efforts to implement and use the most advanced health information.

The goal is to facilitate the exchange, access and use of electronic health information among health care providers and to allow patients better access to their own records.

While the rule gives the HHS Office of Inspector General the authority to investigate claims of information blocking, there are currently no penalties for non-compliance.

There are exceptions to the new rule, for those who do not keep electronic records, for instance. Documents written on a word-processing app would not be considered electronic health records.

Psychologists who use EHR platforms that are not ONC-compliant are also not expected to switch to another platform as this would be exempt for reasons of cost or feasibility, according to information supplied by the American Psychological Association (APA).

It will be up to the psychologist to question his or her EHR vendor to see if they are ONC-certified or if they are planning to make any updates to allow the EHR to be certified.

For psychologists working in larger organizations, such as a hospital setting, compliance issues are most likely handled internally and they should seek out their IT teams or administration to ensure the rules are followed.

The APA, with editorial assistance from the Massachusetts Psychological Association (MPA), has issued several informational documents (see below) on the new ruling.

The organization also advises that psychologists in independent practice look at their own methods around record access, looking for barriers or inconveniences such as long forms patients must fill out, or questions that must be answered before access is granted.

It can also come down to looking at whether the practice has limited or inconvenient hours for patients to come in to inspect their records.

While there are currently no penalties for non-compliance, Jennifer Warkentin, Ph.D., MPA director of professional affairs, recommends all psychologists start to move towards greater access for patients and other health care entities.

“The EHRs don’t all fall under ONC rules right now,” she said, “but certainly this seems to be direction that a lot people want health care to go. It is similar to HIPPA; when that was first introduced, it didn’t apply to private practice clinicians in the same way but eventually everyone was included. My guess is that at some point down the road this will expand beyond the EHRs that are certified by the ONC.”

The concern for therapists, she added, was that the rules were written more from a technical point of view than a clinical one which can make it trickier for psychologists. They have to think about what information should be accessed from an ethical and safety standpoint and about how a patient may respond to what is written.

“I understand the reasons for this movement to empower people to have access,” Warkentin said, “but there was not enough consideration given to how this works for mental health and for substance abuse treatment because that is treated differently than a general medical record. We are left trying to figure out what it means implementation-wise and what changes we need to be making now.”

Should clinicians change the way they write their notes and keep records in advance of these changes becoming more widespread? While it is unclear whether the new rule applies to past records, it could require complete historical transparency and looking at individual systems now would be wise.

“It is complicated, but, yes, psychologists should be writing records with the understanding that patients may read those at some point, that the courts may read them at some point,” Warkentin said.

“One difference is that, right now, if one of my clients came to me and said, `I want to read my records,’ I would have the opportunity to talk to them or perhaps be with them as they review to help them understand what is in the record.”

Warkentin noted that this rule bypasses this whole process so there would be no opportunity to make sure the client understands what the terms mean or the way they are describing something.

She said that clinicians have to write notes accurately so that they are useful and if using billing, address medical necessity and demonstrate if continuing services are needed when clients are not functioning at the highest level.

“With this challenge of clients reading the notes without us, it is a line we have to walk, writing it in such a way that clients will be okay reading it and also providing enough information for insurance companies,” she said.

It can be helpful to have a conversation with patients well before any access is requested about what they will see in their files.

“The best answer is patient education,” Warkentin said. “If someone is going to have to make notes available to a client, they need to make it very clear where, for insurance purposes, they have to focus on symptoms that are not improving. Help the patient understand the purpose of the notes and records and all the difficult things a clinical has to add into those records. That will hopefully mitigate any impact.”

For more information on the various questions and concerns about the new ruling, the APA has issued a Power Point on Information Blocking and FAQs about the information blocking rule.

 

 

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