The 21st Century Cures Act (or the “Cures Act'' for short) was a federal law passed in 2016 that included various mental health provisions. This law has significant implications on the way we share information with our patients and their families.
Published On: 09/27/2021
Duration: 17 minutes, 39 seconds
Related Article: "Welcome to the 21st Century Cures Act Information Sharing Rules," The Carlat Child Psychiatry Report, April 2021
Long-term Risks of Sharing Data: Lund DP et al, Pediatrics 2021;147(3):e2020034199.
Dr. Feder: The 21st Century Cures Act (or the “Cures Act'' for short) was a federal law passed in 2016 that included various mental health provisions. This law has significant implications on the way we share information with our patients and their families. The latest issue of The Carlat Child Psychiatry Report includes a clinical update describing the new information sharing rules presented in the 21st Century Cures Act, and how this will affect our practices’. In this podcast, Mara and I will focus on how the Cures Act applies specifically to child psychiatrists, how it impacts what we record in charts, what happens to that data, and how we work with patients and families as they gain more access to their information.
Welcome to The Carlat Psychiatry Podcast.
This is a special episode from the child psychiatry team.
I’m Dr. Josh Feder, The Editor-in-Chief of The Carlat Child Psychiatry Report and co-author of The Child Medication Fact Book for Psychiatric Practice.
Mara: And I’m Mara Goverman, a Licensed Clinical Social Worker in Southern California with a private practice.
I’m also a regional director at Positive Development Institute.
Okay, so one of the provisions included in the 21st Century Cures Act is a law prohibiting what’s now called “information blocking.” What is information blocking and how does this apply to our practice?
Dr. Feder: Information blocking means preventing your patient from accessing information in their medical record. As of April 5, 2021, the law stipulates that patients will be able to access nearly all of the information we have in their electronic chart, on demand.
Mara: Wait, let’s break this down further in terms of what information needs to be shared and how fast we need to share it. What clinical information do we have to share with our patients?
Dr. Feder: Just about everything in your chart—including clinical notes, medication lists, vital signs, lab results, and assessments and treatment plans.
Mara: Woah, you really weren’t kidding when you said “nearly all of the information in our charts”.
Dr. Feder: Yeah, and that’s just one component of the “Information Blocking” law. Another is how fast we need to respond to our patients' requests for their medical data.
Mara: Clinicians are expected to respond to patient requests to view clinical data without delay.
Dr. Feder: For most of us, this means 1-2 business days after receiving a request. Intentional or unnecessary delays to patient requests are also considered information blocking.
Mara: An example of this kind of delay, that has been common practice, is requiring a patient or family member to sign a document, often erroneously referred to as a “HIPAA form”, before transmitting their health records to another provider. Under the new framework, this practice might be considered information blocking unless certain exceptions can be demonstrated.
Dr. Feder: Charging a fee for electronic access to records can also constitute information blocking. And keep in mind that this law pertains to requests for information; there is no requirement that we proactively share health data with patients or guardians who do not request access.
Mara: I like the concept behind this “Information Blocking” provision, but can’t some of the information in our charts pose a risk of impacting certain patients negatively? I mean I want to follow the law but I also want to uphold the principle of non-maleficence or do no harm.
Dr. Feder: Luckily, this falls under one of the exceptions to the rule requiring release of information to patients and families. You can restrict requests for data only when it is reasonable and necessary to do so, and addresses a significant risk. While the definition of ‘significant risk’ is not clear, we need to clearly document our reasons for restricting access and fulfill as much of the request as we can. Clinicians should document specifically why release of the information might harm the patient.
Mara: The other exceptions to the Information Blocking provision are as follows:
Privacy - Clinicians do not need to release psychotherapy notes or substance use treatment history (the latter still requires a patient's written consent). If a patient asks you not to release information you can respect their wishes and not release it.
Dr. Feder: Security - Clinicians may (and should) avoid release of information when there is a legitimate digital security threat.
Mara: Infeasibility – Clinicians are not required to release information when it is essentially impossible to do so. Examples include public health emergencies and cases where requested data cannot be segmented from data that should not be shared.
Dr. Feder: Health IT Performance - Clinicians do not need to release data (and it is not considered information blocking) during downtime needed to maintain or upgrade technology until the system is up and running.
Mara: Content and Manner - For the first two years of implementation, there is some tolerance for providing less than all the data to give systems a chance to catch up to the new rules.
Dr. Feder: And lastly, the Licensing exception - Royalties paid to health IT developers do not need to be disclosed.
Dr. Feder: In this new age of open notes, our clinical notes will be open to patients and families as well as colleagues. So, it’s critical that we chart mindfully to avoid offending or upsetting our patients and their families.
Mara: Here’s a list of guidelines for writing notes in this new open note world.
It is best to assume that everything you write in the EHR will be viewed by the patient. This includes comments and messages to other doctors that are transmitted through the EHR.
Dr. Feder: Be polite and respectful in what you write in your notes and in your correspondence to colleagues.
Mara: Make sure your notes are written in a neutral perspective and use patient quotes where possible rather than risk making inaccurate assumptions about a patient’s motives for their actions. For example if a patient reports multiple symptoms of depression since a break-up, it may be best to note this as, “I’m so depressed. I can’t sleep or eat.” vs. generalizing “Patient is severely depressed due to the break-up.”
Dr. Feder: Cultural sensitivity is crucial here. Avoid making overly broad statements that attribute blame or derision to an individual engaging in a culturally sanctioned practice. For example, a note such as “The child is up all night and tired during the day because the mother has the children all in the family bed.” would be better stated as: “Mother reports the child is waking about 2-3 times per night and waking others in the family bed, which she notes is an uncommon problem among her cultural community.”
Mara: Be sensitive to protecting the privacy of LGBT youth who may prefer to go by names or use pronouns that parents are not in agreement with. Privately discuss preferred names or pronouns you will use in your note ahead of time in case the patient has concerns of a parent seeing the note. If you are unsure, consider gender neutral pronouns such as “they” instead of he/she.
Dr. Feder: Sometimes we need to document unflattering things about patients. For instance, we may be thinking that a patient does not appear to have the ability to complete an educational program that is deeply important to their future plans. Upon reading this “conclusion” our patient may feel despondent, lose sleep, have trouble concentrating, and perhaps have suicidal thinking. If you suspect a patient will be harmed by or put at risk for harm based on something you write, be proactive and document why you believe your patient will be harmed by accessing the data.
Mara: Finally, make sure your pager or cell number is not listed on your progress notes unless you want your patients to have it.
Dr. Feder: Overall, we need to keep in mind that whatever we write will be seen by our patients and their families. We need to ask ourselves “how will the way I wrote this note affect the people who’ll view it?”.
Mara: Put yourself in your patients and their families shoes before you finalize a note.
Dr. Feder: As child psychiatrists, we are sometimes confronted with a dilemma in which our patients don’t want their parents to know all of the details that are presented in our clinical notes.
Mara: Some teens want their parents actively involved in their treatment while others do not want private information to be shared. So with the Cures Act now in place, can parents and other guardians access our patients’ electronic medical records now?
Dr. Feder: That depends on whether the teen grants them access as proxies but also may be impacted by state laws about the limits of adolescent confidentiality. You should review your own state’s laws about what data can be shared with parents, and when consent is needed.
Mara: Many EHR’s have a multi-tiered access system where less sensitive clinical data is available to parents, while other data such as clinical notes and certain laboratory results are restricted to the teen only. A teen can choose to go onto the EHR portal and add their parent as a proxy if they wish for their guardian(s) to have electronic access to notes or more sensitive data.
Dr. Feder: Help your teen patient think through the risks and benefits to make a good decision about whether to allow other people to access their records, and at what level (ie, medical vs. therapy notes). Remind teens not to share their password with anyone. Help them understand the long-term risks of sharing their data such as cybersecurity risks and possible ramifications if future employers see that data.
Mara: If your patient or family encounters data that they find inaccurate or troubling, be prepared to listen to their concerns and process this with them. Have a procedure in place to correct inaccuracies that are brought to your attention. Consult a lawyer or your malpractice provider if there is evidence of harm to a patient viewing data in the chart.
Dr. Feder: While releasing information can be problematic, open notes also provide new opportunities for patient engagement. For instance, when written in plain language, your notes can double as patient instructions.
Mara: Like it or not, the new norm will soon be for patients to have on-demand access to their electronic charts. Although these reforms affect all specialties, we in child psychiatry face unique challenges in opening our notes to patients and their families. We can adapt by being thoughtful, respectful, and proactive in our documentation.
Dr. Feder: The clinical update is available for subscribers to read in The Carlat Child Psychiatry Report. Hopefully people check it out. Subscribers get print issues in the mail and email notifications when new issues are available on the website. Subscriptions also come with full access to all the articles on the website and CME credits.
Mara: And everything from Carlat Publishing is independently researched and produced. There’s no funding from the pharmaceutical industry.
Dr. Feder: Yes, the newsletters and books we produce depend entirely on reader support. There are no ads and our authors don’t receive industry funding. That helps us bring you unbiased information you can trust.
Mara: Go to www.thecarlatreport.com to sign up. You can get a full subscription to any of our three newsletters for $30 off using the coupon code LISTENER.
There are a lot of doctors and nurse practitioners listening, and quite a few students and residents too. Many of you are interested in getting some kind of CME credit for listening.
Dr. Feder: So we’re going to do it! We’re working on putting that program together now and as soon as it’s available you’ll be able to take a post-test for listening and get credits. Everyone who took the survey is going to get early notification when it’s ready because we have their email address.
If you’d like to get that early notification you can still take the survey at www.thecarlatreport.com/podcastsurvey.
Mara: As always, the links you need are in the episode description. Thanks for listening and have a great day!
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