April 5th, 2021 is the day the Information Blocking/”Open Notes” rule goes into effect! I know we’re all excited for its arrival (for various definitions of “excited.”)
Unfortunately, the new rule has created some confusion. The rule itself is vague on some important points, and most in the healthcare community aren’t familiar with the all-important distinction between “ONC-Certified” EHRs and all of the other systems we use to keep records.
This article will attempt to clarify those points. For many other important points, see our CE course with Eric Ström, JD PhD LMHC on client access rights in 2021 and beyond.
- The Information Blocking rule creates a legally-mandated “Open Notes” situation, wherein we must all immediately push new record entries (including our progress notes) to clients through an electronic client portal.
- The Information Blocking rule gives clients new rights to access their records that weren’t there before.
For an example, see this practice alert from NASW. The author certainly worked to make sure social workers are aware of the coming rule, and that’s a good thing. But it does not differentiate between classifications of electronic record systems like the rule does. Unfortunately, the alert risks confusion for the thousands of private practice social workers who do not use ONC-certified EHR systems.
What’s the Reality?
1) The “Open Notes” bit
The Information Blocking rule applies to both health care providers and to the software developers that make “ONC-certified” software products. (Aside: yes, it applies to all health care providers. It is not limited in applicability like HIPAA is.)
The practice management systems we employ in the mental health field are generally not ONC-certified systems. So the portions of the rule which apply to EHR makers generally don’t apply to those practice management systems. (The practice management systems I’m talking about often have names that start with “Thera-” or “Simple”.)
Developers who do create ONC-certified EHR systems need to make it possible to release records (including progress notes, etc) to clients as soon as the record is available. The rules which cover health care providers essentially require us to use the tools at our disposal to make record releases as easy and smooth as possible.
So, if you use an ONC-certified EHR system, your system will provide you with a way to release records that is very easy and very smooth and you legally must not prevent clients from using it (outside of the limited exceptions to the rule, such as when you believe that a records release will cause harm.)
The rule is also setting the stage for a future (ostensibly in 2022) where every American has a health app that automatically downloads and collates all their health records as soon as those records become available.
One can see how the above-described situation is similar to Open Notes. There are a couple of reasons, however, why I prefer to call it “Openish Notes” or “Open-er Notes”:
- The client still has to request releases of records. Making the request may be as simple as clicking a button in the client portal or setting up an app to retrieve notes on a schedule. There is always a request involved, however.
- The paradigm called Open Notes is founded on a clinician-client relationship wherein clients are encouraged to read their provider’s encounter notes as part of their treatment. There are philosophies and concepts involved in using Open Notes that go beyond simply making notes available to clients who wish to retrieve them.
- Most of the professionals who read my articles do not use ONC-certified EHR systems, and the rule does not require us to adopt such systems.
- Clients have had a right to access their full record, including progress notes, for a looooong time. No one has characterized the pre-existing rights of access as creating an “Open Notes” situation. And that brings us to the next point.
2) The “new rights” bit
None of the access rights afforded by the Information Blocking rule are materially more expansive than the rights already afforded by HIPAA’s Privacy Rule. We’re getting a new way of determining what information needs to be released with records, but that new method doesn’t add much significance for non-psychiatric mental health providers. (IMO)
What the rule does create is a set of fangs for regulators to crack down on practices that slow or delay the release of records to our clients. With Information Blocking in effect, it’s important that we all proactively support the rights of our clients to request copies of their full records.
Those rights are not new, however. To quote LL Cool J: they’ve been here for years.
Upon analyzing the Information Blocking rule with my colleagues, we determined that the primary challenge for most private practice mental health pros will be in knowing what those rights are. It is our observation that mental health pros tend to believe that client rights of access to records are less broad than they actually are.
For that reason, our colleague and company friend Eric Ström, JD PhD LMHC decided that we need to work hard towards helping mental health professionals gain a deeper understanding of access rights. Without that understanding, our colleagues have a risk of getting stabbed (metaphorically) by those new fangs which the Information Blocking rule creates. You can check out the CE course + workshop that Eric and I made on client access rights here.
Ask your practice management system how they will respond to the Information Blocking rule. Get an idea of what mechanisms they will provide clients for retrieving records.
Also, review your process by which clients can request records and by which you comply with those requests. Be sure that your process doesn’t create any unnecessary barriers or slow-downs. Yes, you can definitely still talk to clients about summaries vs verbatim records, etc. Just don’t let that discussion cause undue delays. The workshop portion of our Rights of Access CE course provides several practical examples.