“Exception to privacy” No cure for the headaches of open doctors’ notes

Some doctors are reluctant to the federal notice last week, suggesting they can delay posting bad news on electronic patient health portals without breaking new federal law that requires it. Their patients need only ask for the delay in advance.

The framework for doing this is built into the “confidentiality exception”, one of the eight exceptions to the new rule for blocking information or “open notes”. This allows the “actors” (i.e. to reign.

According to the ONC website, the “sub-exception e” specifies that the clinician would not violate the rule if “the individual (the patient) asks the actor not to provide such access, exchange or use. electronic health information ”, and whether the clinician has not unduly encouraged or prompted the patient to make this request.

The information blocking rule, which took effect on April 5, requires doctors and other providers to make electronic records in 16 categories – from visit notes and imaging studies to lab reports – available on the portal. patient’s health as soon as they are available. The law aims to strengthen the patient’s right to their own health information quickly and electronically so that they can make decisions about their follow-up care, schedule appointments and arrange family assistance without waiting days or even days. weeks for another appointment or doctor’s call.

But the American Medical Association (AMA) and AMGA, which represent 450 multi-specialty groups, oppose the plausibility of tailoring the publication of medical records to each patient and to each of the 16 record categories as the rule. required.

ONC “assumes that healthcare systems, physician practices and electronic health record providers have the technology, processes or workflows to accommodate their regulations. It is not, ”said WADA President-elect Jack Resneck Jr., MD.

“For example, many EHR systems do not provide a confidentiality exemption that would allow physicians to retain specific information at a patient’s request. The technology is currently not capable of doing what the ONC suggests. for doctors to do, “he said.

“Due to the ONC’s lack of forethought, patients are harmed and physicians face ethical dilemmas – causing thousands of physicians themselves emotionally injured, with increased stress and exhaustion,” Resneck explained .

In a July letter from AMGA President and CEO Jerry Penso to Micky Tripathi, PhD, MPP, ONC’s national coordinator for health information technology, Penso said the groups Doctors wanted the rule changed to give them the option of waiting between 24 and 72 hours after electronic records are available.

The rule goes beyond supporting the concept of information sharing, according to the AMGA letter. Instead, it confuses the doctor-patient relationship, especially with examples where a patient is notified on their portal that they have Huntington’s disease, or a patient learned of a miscarriage via a phone alert. before the doctor has reviewed the results, or a patient who learns he has HIV from a lab report.

Ted Mazer, MD, former president of the California Medical Association, supports the idea that patients have the right to timely and accurate information about their condition. But he criticized the idea that doctors would have to seek consent from each patient to automatically publish each type of health record on the electronic portal.

He said it was “insane” that doctors could tailor their electronic health records to each patient’s wishes and “put another requirement on the doctor,” said Mazer, a semi-retired otolaryngologist in San Diego. . It is “an unworkable option proposed by autocrats who run a medical system who have no idea how it works and the interpersonal relationships within medicine.”

The ONC “just publishes edicts that they find wonderful, but they never modeled, piloted, or tried to see if it would be successful or harmful,” Mazer said. “Do you want the doctor to have another tedious discussion with the patient every time they order a lab?” “

The new rule, which is part of the final rule of the 21st Century Cures Act, requires clinicians to no longer wait for a discussion to communicate results to patients. Delaying the publication of laboratory reports or visit notes, or not publishing them at all, has been the practice of many physicians who regard patient information as the property of the practice. Or, they thought the doctor should convey information rather than asking the patient to read the charts without a full understanding of medical jargon or the implications for their health.

Responding to criticism, an ONC spokesperson responded that the law was passed in 2016, with a 3-year rule-making process, and then a delay before it comes into force, implying that clinicians have had sufficient time to prepare.

The spokesperson added that “when it comes to complying with the information sharing expectations of the law, the ‘information blocking exceptions’ of the Cures Act Final Rule are intentionally flexible and allow clinicians to choose the technologies and processes that can best adapt to their workflows and the patients they serve. “

In other words, the exceptions to the rule are flexible.

Federal regulations have not yet determined what the penalties will be for blocking information or when formal charges will begin, except to say that the regulations will specify “deterrents” after a determination by the Bureau of Health and Human Rights investigation. social services of the Inspector General that a doctor blocked information the patient was entitled to have.

  • Cheryl Clark has been a medical and science journalist for over three decades.

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