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Data: Documentation Matters

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FAQs About the Cures Act

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As of April 5, 2021, the information blocking (aka “open notes”) rule of the federal 21st Century Cures Act dictates that eight categories of clinical notes created in an electronic health record (EHR) must be immediately available to patients through a secure online portal. Individual or organizational health care providers may not block, or delay patients’ access to, any eligible information (including test and studies results) entered and stored in their EHR.


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Q: As of April 5, 2021, what do I have to do?

A:

As of April 5, 2021, you, your facility, or your practice will need to share electronic health records with the patients at their request. Clinical notes must be shared by health systems by April 5, 2021 and shared with a patient’s third-party smart phone app or other device by October 6, 2022.

Q: How is the OpenNotes research initiative related to the Cures Act?

A:

While the “information blocking” regulations that are included in the Cures Act are informally referred to as the “open notes rule,” the Act does not formally endorse the (non-profit) OpenNotes program. Because OpenNotes has been promoting the benefits of patient access and helping health care providers implement such access across the U.S. for more than 10 years, that program’s website and staff are well-positioned to offer collegial support as the Cures Act takes effect.

 

Q: I understand that I might be at risk for what I didn’t document, but can I be sued for what I did write in a patient’s chart?

A:

What was or was not documented is rarely the primary reason a patient files a claim or suit alleging malpractice, but the medical record is, essentially, the “key witness” in such proceedings. Any issues with that record (gaps, ambiguity, insensitivity) serves to undermine the defense of standard and appropriate medical care, and has the potential to create an impression of negligence.

 

Q: Who is liable for an information blocking violation if a health information portal that my patients use (over which I have no control) malfunctions?

A:

There are several exceptions within the rule for uncontrollable events, such as the inability to fulfill the request for access, exchange, or use of electronic health information due to a natural or human-made disaster, public health emergency, public safety incident, war, terrorist attack, civil insurrection, strike or other labor unrest, telecommunication or internet service interruption, or act of military, civil or regulatory authority. In such cases, you must provide a written response to the requestor within 10 business days of receipt of the request with the reason(s) why the request is infeasible.

 

Q: I write my notes for myself and other clinicians who understand the terminology, abbreviations, and shorthand; will I need to change to non-clinical language?

A:

While there are medical record documentation practices that may be hard-wired for all clinicians, chart etiquette deserves extra attention now that non-clinicians will also see what you write. This doesn’t mean you have to dramatically alter how and what you chart, but you will want to be sensitive to terminology and descriptive language that may be unnecessarily hurtful or confounding to a lay reader. When unsure, it is a good rule of thumb to mirror the way that you would speak with a patient in your notes. Specific language that is required for billing and coding should not be altered.

 

Q: I think it’s important to chart the truth about patients who don’t take care of themselves or aren’t cooperative in their care. How do I do that without alienating them?

A:

As long as your documentation is accurate, and not intentionally judgmental or disrespectful, you should continue to include whatever information is needed to assist future care and to enable the patient to understand their health status and health issues.

Q: I don’t have enough time for my patients as is; will I be expected to spend time explaining my notes, too?

A:

It is best to assume that your patients will access their notes, thus best to explain any specific things for them to look for (new test results, reminders, milestones, etc.). Tell them what you are looking for or may expect to find when you order a test, and that they may see the results before you do. The OpenNotes team reports that, in the 10 years of studying the effects of patients reading their notes, clinicians have not reported a significant increase in visit time or emails from patients.

 

Q: I sometimes talk to patients by phone or text. Do those have to be made available?

A:

Yes. Clinically relevant information exchanged during any form of patient encounter needs to be contemporaneously documented in the patient’s medical record, and thus immediately available to the patient.

Q: What happens if a patient finds an inconsequential mistake, or is offended by what they read in their record?

A:

As with any shift in the delivery of health care, broader and deeper access to clinical documentation may become a factor in both a patient (or family) deciding to file a malpractice claim or suit, and in the defense of cases brought for any type of allegation. More likely, however, is that a careful reading of clinical notes will aid patients (and their attorneys, if applicable) in better understanding their care encounters, and dispelling the notion of negligent practice. And, although patients may be aggrieved by innocent errors, or terms and descriptions they see in their records—and may express those feelings to their providers—it is unlikely that any fruitful pursuit of legal action would ensue (unless the documentation was egregiously unprofessional).

 

If there are specific concerns related to a documentation error or issue raised by a patient, contact your patient safety and/or risk management office for assistance in how best to respond.

Q: What do I do if a patient points out a typo or mistake? Can I change the record after the fact without getting into trouble?

A:

The institution(s) where you practice should have policies and processes for patients to request amendments to their notes (e.g., Medical Records/Health Information Department).


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