Vol. 18 Issue 16
Looking at Legality: Medical Records
New questions and concerns are popping up around the legalities of EHRs and PHRs.
With an ever-increasing variety of EHR systems on the market, more practices and facilities migrating to electronic records and the growing focus on personal health records (PHRs), there is little doubt that new questions and concerns will pop up around the legalities of health records.
"It's a really complex area. There are lots of different issues to explore," said Michelle Dougherty, RHIA, CHP, director, Practice Leadership, the American Health Information Management Association (AHIMA). "It's also an emerging issue in terms of what we're learning and understanding. We're fairly early in the process because the adoption of EHRs is still relatively low, but early adopters raised the flag several years ago. I see this as a topic that is gaining momentum and industry awareness as a result of better recognition that the EHR is primarily for patient care but also has to support an organization's business needs."
One consideration is the business rules on the books that apply to how records are maintained. Those rules applied to paper records, and the industry is in the process of figuring out how they transcend to electronic records, she said, and prevent alteration, loss and destruction no matter the format. There is one particular HL7 standard in the worksthe EHR functionality profile, one of the first focusing in on this area. That includes record management and evidentiary support, the types of functions you'd expect to see so that the records are created, maintained and managed in a way that's legally sound and has some evidentiary value.
Another consideration is PHRs. Because these records are just starting to come into their own, Dougherty said, there are numerous questions about how a PHR intersects with an organization's legal record. "I think it's a new frontier in some respects. How will the courts view it? We'll have to wait and see." Patients certainly provided information in the past but it wasn't in the form of a PHR. The legal record needs to document what the clinician knew and when, she said. That question will continue to be asked with PHRs. The industry needs to figure out what type of functionality is needed to support the PHR data that's coming into an EHR, how to identify patient-generated information and how to form a pure record from a legal perspective.
Vendors play an important role in this venture, Dougherty said, "just like any stakeholder in this area." They recognize that there are record management issues and uses for the record that's produced out of their systems. "Standards and functionality have to be integrated into their systems so that credible records are the output. Vendors have to see that standards are evolving and develop plans to integrate them into their new systems. We're already seeing that CCHIT [Certification Commission for Health Information Technology] has raised the bar in this area." Some basic functionality has been incorporated into the certification criteria, and a workgroup is dealing with privacy and compliance issues.
Meeting Market Demands
Kelly McLendon, RHIA, principal of Health Information Xperts, provides EHR consulting services and created a workbook of worksheets designed to help health care providers manage their legal medical records. He said response has been good. The product came about after he spent time working on the AHIMA workgroups and sensed the interest. "They had more volunteers for that project than they'd ever had before," he said. He realized there was a need for tools that people could use to catalog their information.
McLendon believes facilities are starting to focus on the legalities of medical records, although most have not. However, "market forces are going to demand it. It's inevitable," he noted.
One problem is that clinical software has typically been written by and for the clinician, who isn't necessarily the strongest at recordkeeping and documentation. Clinicians "don't necessarily take care of administrative processes. Providers are beginning to realize that the systems are clinically oriented but not administratively oriented so they are scrambling to create the right policies and procedure," McLendon said.
With the range of electronic record systems on the market and the likelihood of recordkeeping shortcomings, "plaintiff attorneys will begin to challenge the information in these records." The electronic record is a very complex environment, he said. "Not enough facilities are paying enough attention to it." And HIM professionals need to understand legal concepts, he stressed.
Most cases are heard in state court but the current rules are well defined for federal court, McLendon said. In December 2006, the rules for getting EHRs into evidence and the procedures around that changed. States have to decide whether they want to adopt their own rules and are starting to talk about whether to modify their own state rules of civil procedures to reflect electronic records. "Each state is different and it seems to take years for states to adopt new rules like this," he said. "There is much work to be done by each state. It's important that HIM directors, CIOs and other stakeholders pay attention to what their states are doing because it's going to impact how to release information."
Robert L. Coffield, a health lawyer at Flaherty, Sensabaugh & Bonasso, PLLC, agrees that we are in a period of adjustment. "It's a question of waves that keep coming," he explained. Unlike the paper record kept under lock and key, records today are decentralized and can be connected to and between providers. "Technologically, this is a sea change we have seen and are undergoing," he said.
Coffield said the latest wave is PHRs. "Legal ownership of the medical record underlies all of this." In most states, the patient really only has the right to access and to have a copy of his or her record. Similarly, HIPAA provides for a right of access and copying. "With the PHR, we are seeing whether consumers choose to become more active or if changes in reimbursement could influence consumers to want to start to take control." Along with all of that is the whole structure of the health information exchange movement, he said, that is afoot from the state, regional and national levels. "Those are some examples of the disruption ongoing. There are thousands of legal questions that pop up in my mind," he noted.
It's a truly evolving process, said Coffield, and many more factors may come into play in the coming months. Our next president and whether the country moves toward a national health care plan could impact the consumer role. "If issues go to people's pockets, they take a more active role in maintaining and managing their health information," he said. An evidence-based preventive model would have "huge influences on the role of collection and maintenance of historical medical information about the patient. Right now, the reimbursement system is not set up for those purposes. We are just starting to see incentive-driven care models."
Coffield also anticipates a revision to HIPAA regulations at some point. "We've got all these issues of preemption that are problematic for a national health infor-
mation system. HIPAA did not totally pre-empt state law so we still have a patchwork of state law that may conflict with a national uniform privacy plan." When enacted, the HIPAA privacy regulations didn't contemplate robust health information exchanges, PHRs or the evolving Health 2.0 business models. "Now, over the past 2 years, that's been a major development." Plus, back in 2001, when HIPAA initially went into effect, there was a lot less electronic flow of information.
There are many questions and many answers to consider, but it is clear that this is an area HIM professionals should keep on their radar. "As organizations use electronic systems more, they will be faced with some of the downstream use of the record and challenged by it," said Dougherty. "I see this topic as just building momentum. People recognize that there are multiple uses for records that go beyond patient care. This definitely won't go away until it gets addressed. Drivers, including litigation, are not going to get easier as courts become more savvy on how to use electronic records and how to exploit their weaknesses. That creates more and more incentive for wholesale changes."
Beth Walsh is a writer/editor focusing on HIT.