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Curbside Consult with Dr. Jayne 8/23/21

August 23, 2021 Dr. Jayne 5 Comments

Part of the fun of being a consulting CMIO is working with a variety of clients that have needs across the clinical informatics spectrum. Sometimes I work with smaller organizations that need informatics leadership but don’t have the funding for a full-time position or qualified physicians willing to fill the role even in a part-time capacity. Other times I might be augmenting a large health system going through a transition, supporting a specific element of their informatics needs such as absorbing legacy systems they acquired through practice purchases or consolidating ancillary systems. There are always challenges and sometimes I run into areas where I’m not fully expert in the subject matter, but a big piece of being a good consultant is knowing when (and where) to get help when you need it.

Less fun in the arena of the consulting CMIO is when a client hires you for your expertise, and then proceeds to either ignore it, or worse yet, acts like you don’t know what you’re talking about. I was going round and round with a client last month who insists that the information blocking rule of the 21st Century Cures Act (which some of the analysts continue to refer to as the “Cares Act” despite corrections) does not apply to them. There are a number of outstanding resources that help organizations understand the requirements and how to implement them, and I’ve provided checklists, infographics, and even the relevant pages of the Federal Register in an attempt to get them on board.

In short, Open Notes requires that healthcare providers offer patients access to much of the health information in the electronic medical record without delay. Failure to provide the required access constitutes information blocking.

I had a meeting with one of the newly hired operations VPs a while back, when I again tried to talk the client into accepting their need to comply. The conversation I had was fairly comical:

Me: We need to talk about Open Notes again. You’re not in compliance, and this places the organization at risk. Additionally, it’s not good for patient satisfaction, as your competitors are all releasing their documents. We really need to figure out how to move this forward.

VP: My interpretation is that it only applies to health systems and we’re just a physician group.

Me: Actually, this applies to all healthcare providers. Since the organization is a physician group, it needs to comply.

VP: We think our patient will be harmed by this. Isn’t there an exception for harms?

Me: There are specific criteria for a “preventing harm” exception, but given the fact that the majority of visits performed in the organization are routine medical visits, it would be impossible to claim that across the board. [slides copy of FAQ document from a reputable organization across the table]

VP: This list of documents doesn’t apply to us. We don’t generate any of these documents.

Me: Let’s see – consultation notes, history and physical, lab reports, procedure notes, progress notes – there aren’t any of those in the EHR?

VP: No, we have encounter notes.

Me: It doesn’t matter what you call them, basically all of your encounter notes are consultation notes, history and physical notes, procedure notes, or progress notes.

VP: Our EHR isn’t certified, so we don’t have to do it.

Me: Actually, that doesn’t matter. The ONC FAQ page specifically says that it applies to healthcare providers “regardless of whether any of the health IT the provider uses is certified under the ONC Health IT Certification Program” or not. And we really should talk about that EHR …

This went on for a good 20 minutes, as the VP — who is half my age and has less than two years’ experience on the provider side of healthcare — tried to convince me that I didn’t know what I was talking about. The organization has been through several such VPs in the short time that I’ve been working with them. 

As all the VPs do, he said he would “have to take it to legal,” who always refuses to do anything. It’s the ultimate brush off since “legal” really means “our outside counsel since we can’t keep anyone on staff” and no one ever takes responsibility for a decision. The physician CEO of the group perceives himself to be too busy running the group and dealing with disgruntled physicians to get involved in escalating this with the legal team, dumping it back to me “because this is why we hired you.”

It’s disheartening to have to work with people like this when you’ve been hired to do a job that you’re good at and have a proven track record of helping other organizations achieve what you’re trying to accomplish. Not to mention, as a patient who has uncovered some pretty significant misses in my own medical record through the magic of patient-facing notes, I’m a believer in the power of the tool regardless of the regulatory requirements around it.

This particular VP is the same one who tried to convince me that certain data elements in the patient chart — including blood pressure records that the patient brought to the office and the physician signed, dated, and had scanned into the chart — aren’t technically part of the legal medical record, despite the fact that the physician used them to support the Medical Decision-Making component of an office visit and referred to them in his dictation.

Fortunately, I use a standard contract that lets me terminate clients like this with relatively short notice, so I opened the escape hatch a couple of weeks ago. I’m wrapping up some final transition items this weekend and am looking forward to moving on. I’m not fond of putting my professional credibility on the line for organizations like this.

I find the CEO’s attitude particularly unsettling and I understand why he might be dealing a number of disgruntled physicians if they are having to interact with people like the operations VP. I’ve built some good relationships with several of the physicians and I’m sure they’ll keep me posted on what happens with this over time.

Is your organization on board with Open Notes, or are you holding out? Leave a comment or email me.

Email Dr. Jayne.



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Currently there are "5 comments" on this Article:

  1. This conversation is so spot-on, I could have written it myself. If I hear “Cares ACT” one more time…

    Thanks for highlighting this confusion point. It’s so common. I hear ONC is developing a provider-focused webinar soon. I hope so – it’s time they heard directly from them. Providers aren’t used to doing so, and I don’t think that’s helping.

  2. “No, we have encounter notes.” ROTFLOL. Kudos for being able to sit there with a straight face.

    Some only want advice until it doesn’t line up with what they want to be told – provide guidance on something they interpret differently or doesn’t fit their agenda and suddenly you don’t know what you’re taking about.

  3. Just went through the same thing. Practice didn’t even glance at the rules since they don’t have a certified EHR and don’t take Medicare or Medicaid, assuming none of it applied to them. Printed out the entire rules from both ONC and CMS, highlighted all the relevant passages, cross referenced to HIPAA and the Public Health Services Act key term definitions and wrote up an executive summary that essentially said: Yes, information blocking applies to you.

  4. > Less fun in the arena of the consulting CMIO is when a client hires you for your expertise, and then proceeds to either ignore it, or worse yet, acts like you don’t know what you’re talking about.

    Now you know why I quit the CMIO role in Delaware in 1998 and never worked in that role again.

    Interestingly, this phenomenon does not happen in the legal sector, where I now provide expert services.

  5. After some forty years in healthcare consulting and systems one thing I learned is that there are a few clients you don’t want. This is a classic example. At the end of my first hour with this organization I would have left it at:” Good luck, and I hope you find that magician you’re looking for”.







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