The OpenNotes Rule Against Information Blocking: What Healthcare Practices Need to Know
A new federal rule prohibits information blocking, giving patients full, immediate access to their electronic health data. What does this mean for your practice?
What you don’t know can’t hurt you. This might be true when you threw a party in high school while your parents were away for the weekend. Or when you borrowed mom’s car without asking, making sure to beat her home. But is it also true in healthcare?
Lawmakers don’t think so. A new federal rule gives patients quick and easy access to their electronic health information (EHI). It does so by prohibiting information-blocking tactics that create barriers between patients and their medical records. Proponents say transparency will improve patients’ engagement in and adherence to their treatment. Opponents, however, are concerned that patients will misinterpret what they read in their clinical notes.
Do the benefits of open notes outweigh the drawbacks? The jury is still out. We explore the goals, requirements, pros, and cons of the new rule.
Origins of the New OpenNotes Rule
In 2016, Congress passed the 21st Century Cures Act, which included new prohibitions against information blocking. However, whenever Congress passes a new law, it’s up to federal agencies like The Department of Health and Human Services (DHS) to create rules that explain how that law will be implemented. This lengthy process involves soliciting public comments and issuing multiple renditions of proposed rules before they become final.
Last year, the DHS Office of the National Coordinator for Health IT (ONC) released the final rule implementing the Cures Act. The rule took effect on April 5, 2021. The information blocking provision is known informally as the “OpenNotes Rule,” for the non-profit advocacy group that pushed for the change.
What Does the OpenNotes Rule Say?
The OpenNotes Rule applies broadly to clinicians (including psychologists), hospitals, IT developers, health information networks, and health information exchanges.
The rule prohibits information blocking, which is any activity by a healthcare provider that is likely to interfere with the access, exchange, or use of electronic health information by the patient. In simple terms, the ONC wants patients to see what healthcare providers are writing about them—transparency via open notes.
But what is considered interference? Good question; messy answer. Whether a delay in providing a patient’s EHI constitutes an interference requires a case-by-case determination.
Say, for example, a physician delays releasing EHI to ensure the release complies with state law. Such a delay is unlikely to be considered interference. However, a physician would likely be interfering if she delayed releasing a patient’s lab results to review them first.
Essentially, ONC intends to give patients access to data as soon as it is collected. Healthcare professionals who proactively make their notes available via secure patient portals and phone apps can know they are in compliance.
What Notes Must Be Shared?
The prohibition against information blocking has a broad reach. It requires physicians to share virtually all clinical notes that a patient might find relevant to their health. Again, the OCN wants to put patients in the driver’s seat of their own treatment. As a result, The Rule states providers must disclose:
- consultation notes
- discharge summaries
- histories and physicals
- all imaging, laboratory, and pathology reports
- procedure notes
- progress notes
What Notes Can Be Withheld from Patients?
Mental health therapists or psychiatrists don’t have to release psychotherapy notes that are kept separate from the patient’s medical record. Psychotherapy notes are limited to those written by a mental health professional while analyzing the contents of a conversation during a therapy session. These notes help therapists think through and plan patients’ treatments. They contain subjective impressions, not treatment information like the interventions used or medication prescribed. The OpenNotes Rule recognizes these notes are likely to hold sensitive information. As a result, it exempts providers from releasing them.
General Exceptions to Information Blocking Prohibitions
The OpenNotes Rule contains eight exceptions where restricting access to EHI is not considered information blocking. Here, we’ll discuss three key exceptions: the preventing harm exception, the privacy exception, and the infeasibility exception.
Preventing Harm Exception
The preventing harm exception allows a provider to refuse to disclose EHI if that would endanger the life or physical safety of the patient or another person. Under the exception, the provider must have a current or past physician-patient relationship with the patient. Moreover, the provider must have a reasonable belief that blocking access to the EHI will substantially reduce a risk of harm. For example, a psychologist could refuse to release a suicidal patient’s EHI if she reasonably believes the records would increase the risk of the patient taking his own life.
The privacy exception allows providers to refuse to disclose EHI if it would violate any applicable state or federal privacy laws. For example, if your state requires you to obtain a patient’s signature before releasing EHI, you can delay disclosure until you get that signature.
The infeasibility exception allows providers to deny access to EHI if the request isn’t feasible. Here, The Rule recognizes that legitimate practical challenges may limit a provider’s ability to release information. For instance, a provider may not have the requisite technology to provide patients with instant access to notes. Indeed, most small practices lack the certified EHR systems required to release health records on an app or patient portal immediately. As such, the rule exempts providers who can demonstrate that upgrading their EHR systems would cause them a significant burden.
Benefits of Open Notes for Patients
Advocates of the OpenNotes Rule are optimistic it will improve patient investment and involvement. The traditional model of providing patients only a partial picture of their data undermines their ability to make decisions about their own care. In contrast, offering the full-spectrum picture of their data allows patients to become active, informed participants in treatment decisions. This rebalancing of power can strengthen patients’ trust in their physicians, improving the physician-patient relationship as a whole.
Retention of Important Information
Additionally, enhanced disclosure can improve patients’ understanding of the encounter. Typically, doctor visits are short and full of distractions. Of course, patients want to stay focused on their health. However, their minds wander, and they think: does my doctor like me? Is she judging me for smoking? Is that needle going to hurt? What if the labs come back positive? These stressful distractions cause patients to forget most of what their doctor told them. In fact, research shows that most patients forget 40% or more of the information from a clinical encounter almost immediately after it ends.
Open notes, then, provide an opportunity for patients to review their visits and clarify what they didn’t catch the first time. Patients can even go over specific treatment instructions. For example, they can check how often they should take their medication. This may help improve compliance for patients who struggle with memory lapses.
Sharing notes can also benefit practitioners by inviting an expert in the patient’s care to share responsibility for maintaining records’ accuracy. By giving patients access to providers’ clinical notes, small and large errors can be identified and corrected. Did the patient receive the Pfizer COVID vaccine rather than the J&J shot mentioned in their notes? Is the patient undergoing fertility treatments at an outside facility, including the use of medications not otherwise noted in their record? Perhaps the clinical notes even contain small errors about the patient’s exercise, eating, or weight gain/loss habits that can help their providers better monitor their health risks.
Encouraging Higher-Quality Notes
Last, transparency can help improve the quality of physicians’ notes. Spoiler alert: doctors, like the rest of us, care what people think about them. If doctors know that patients will read their notes, they’re going to be more thorough. They will screen for spelling errors. They will put more effort into using neutral, objective language. Further, spending even a couple of extra minutes evaluating charting could help doctors better understand their patients’ issues and needs.
Provider Concerns Over Open Notes
Clearly, there are numerous benefits to sharing notes. But it’s not all roses. In fact, some providers find the idea of sharing notes frightening. They worry that open access to notes will cause patients to misinterpret what they see.
Misinterpretation Due to Lack of Training or Context
Remember all that education required to earn a healthcare license? Well, it comes in handy when interpreting clinical data. For example, imagine a patient seeing his chest X-ray before his doctor can discuss it with him. The patient may think: is that dark spot something to worry about? Doesn’t that seem too cloudy? Do I have pneumonia? Cancer? Before long, this patient has diagnosed himself with half of the conditions on WebMD, and a few more he invented himself. In reality, it’s likely his X-ray is normal; he simply is misinterpreting what he sees. Without his doctor acting as a buffer, though, the what-ifs take root in his mind.
Addressing Sensitive Topics
Additionally, patients may take offense at something their doctor writes about them. For instance, say a doctor noted that her patient is obese. This doctor had no intention of insulting her patient; she just wanted to classify him accurately into health-risk categories. However, the patient may fail to appreciate the doctor’s goal of maintaining medical accuracy. Indeed, the patient may perceive this comment as an insult. If so, it could serve to deteriorate his relationship with his doctor.
This risk is especially high for psychologists. Indeed, they frequently must chart their patients’ unhelpful behavior. In private notes, mental health professionals can quickly and accurately describe “self-sabotaging” or “dependent” behavior. However, if notes are shared, many patients may be offended by the word choice.
Self-Censoring of Key Information
With these concerns in mind, physicians may become overly cautious and excessively edit themselves. As such, they may beat around the bush and avoid tackling patients’ health issues head-on. Opponents of open notes are concerned this hesitancy may reduce the quality or accuracy of physician charting. Before the rule went into effect, physicians could brainstorm openly, freely issue-spot, and objectively evaluate options. Now, many feel over-restricted and at the mercy of their patients’ subjective impressions.
Some notations are simply inappropriate for patients to see. They have nothing to do with their health. For example, a physician may describe her patient as a “sports-nut” in his charting. Another physician may write himself a reminder that “this patient brought cookies.” These cues allow physicians to strengthen their social connections with their patients. They cue physicians on topics they can bring up during the appointment to increase patients’ comfort level. With open notes, though, these social preparation tactics become visible to patients, rendering them less effective and less appropriate.
Overall, many are optimistic that providing patients with access to their medical records will improve care. However, The OpenNotes Rule is brand new, and many providers are struggling to understand their obligations.
A knowledgeable healthcare lawyer, such as the attorneys at Jackson LLP, can help you develop practice policies for recording notes and responding to records requests. Such a policy can form a stand-alone document or become an addendum to your employee handbook. If you’re a provider in one of the areas we serve, reach out to us for a free consultation so we can discuss how we can help you stay compliant with the new rule.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.