Perspectives

Open notes in health care: The good, the bad, and the ugly of the Cures Act


 

Ugly news about open notes

Some patient requests for record amendment are legitimate and easily handled. Some patients, however, will request removal of material they find embarrassing, even though it is accurate.

More frequent requests for records changes from patients could increase already weighty administrative burdens on providers. Worse, some of these requests will be for changes providers cannot support, and making time for careful conversations with patients and providing written responses for requests that are rejected will be a challenge. Inevitably, some of these conversations will not go well, whether through the patient feeling the provider did not adequately respond to their concerns, or through the patient insisting on unreasonable demands. These negative relationship outcomes will add emotional stress on both the patient and the provider, as well as a reputational threat to providers from angry patients posting negative reviews online.

More tangibly, noncompliance with the open notes requirement carries the potential for fines, penalties, and/or sanctions from medical boards. The specifics of potential penalties are not yet known – there are more changes coming with the Cures Act.

Making changes in open notes

Patients will ask providers to amend their medical records. Be familiar with what the patient has the right to ask, what the provider can grant and/or refuse, and how to amend notes.

Here are some highlights:

  • Patients have the right to request amendments to their medical records: HIPAA requires a signed, dated request from the patient regarding what they want changed and why.
  • Providers have the right to determine whether the requested amendment will be made: The provider must respond, in writing, within 60 days of receipt of the patient’s request.
  • Common reasons to deny a patient’s request include that the provider who received the request did not create the record entry, or that the medical record is accurate as is.
  • The patient’s request and the provider’s response both become part of the patient’s medical record.

Strategies for success

When composing notes, certain simple strategies will raise the odds that notes will be well understood and well received. Beyond being clear and succinct, strategies for success include composing at least a portion of the note as instructions directly addressed to the patient – “Start taking lisinopril and check your blood pressure twice a week” versus “Initiated lisinopril and instructed her to check her blood pressure twice a week” – and providing a list of commonly used medical terms and abbreviations.

For an in-depth review of strategies for success when composing notes, see “12 Strategies for Success With Open Notes in Healthcare: The Cures Act.

Exceptions

Unless an exception applies, clinical notes must not be blocked, but the Cures Act allows for a fairly long list of specific, well-delineated exceptions. For instance, a record can be blocked if a provider believes that viewing a note presents a substantial risk of harm to the physical safety of the patient or someone else. The Cures Act also recognizes exemptions that apply to certain caregiving situations, such as when parents attempt to access confidential parts of an adolescent child’s records.

For information regarding exceptions to open notes, please see “What Open Notes Exceptions Does the Cures Act Allow?

Seeing open notes as part of high-touch, high-value care

While many physicians and other providers have anticipated open notes with dread, most outcomes so far have been positive. Patients have reacted well to clarity. They have used open notes as a tool to improve their own understanding of and adherence to care instructions. When patients have noted valid issues or miscommunications, they have appreciated being able to quickly clear them up. More than an administrative burden, open notes present an opportunity to improve documentation, patient-provider relationships, and patient safety. By improving patient adherence to treatment plans, open notes have the potential to improve provider satisfaction, as well.

Chad Anguilm, MBA, is vice president, in-practice technology services, Medical Advantage, part of TDC Group. Richard F. Cahill, JD, is vice president and associate general counsel, The Doctors Company, part of TDC Group. Kathleen Stillwell, MPA/HSA, RN, is senior patient safety risk manager, The Doctors Company, part of TDC Group.

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