Curbside Consult with Dr. Jayne 8/26/24

The vast majority of HIStalk readers work with some of the larger or better-informed sectors of the healthcare IT industry — health systems, hospitals, large physician groups, technology vendors, governmental entities, and other similar organizations. Many of us have teams that are dedicated to keeping up with regulations and requirements and making sure that we don’t get ourselves into trouble. For those who are willing to push the boundaries, there are often legal and compliance teams that help advise prior to a decision being made.

I’m active in my local professional society, where the majority of physician members are not employed by a hospital, health system, or other large organization. They may be in a group of one to 10 physicians and generally focus the most on providing quality healthcare to the people in their community, which means sometimes that they don’t follow regulatory requirements as well as they should. EHR vendors that focus on ambulatory practices have done a good job of trying to keep them informed and explaining what components and features of their systems are designed to help with regulatory compliance, but the reality is that some of those physicians never see those newsletters. Even if they see them, their understanding of the requirements and risks is highly variable.

National specialty organizations also do a good job of advocating for and informing their members, but there is also a risk that physicians don’t see those communications either. There are consultants out there that can help, but given the small margins under which the average private practice physician group is operating, any additional expenditures seem daunting.

Because of these factors, it will be a surprise to many that physicians and other clinicians who are participating in certain Medicare programs can wind up in hot water with information blocking. Many of the physicians that I interact with at the local level don’t even know what this means. One of my own physicians is one of the biggest blockers I’ve ever met, because her patient portal is incorrectly configured and releases nonsense information rather than the required data elements.

As of July 31, the Department of Health and Human Services, via the Office of the Inspector General (OIG), will start enforcing the information blocking provisions with respect to physicians, hospital accountable care organizations, and others who had previously been excluded from the rules that are found in the 21st Century Cures Act. The OIG plans to spend most of its efforts investigating situations where information blocking is said to have caused patient harm, to have gone on for a long time, or to have had a negative financial impact on federal / government healthcare programs or private entities. To meet the standard of violating the rule, the practice has to have knowledge that their operational practices are unreasonable and are apt to interfere with or discourage patient access or use of electronic health information.

Physicians who are found to have committed information blocking can receive penalties through the Medicare Merit-based Incentive Payment System (MIPS) that will impact them for future years as well. The names of offenders will also be published on federal websites, and I suspect there may be some other downstream ramifications that are related to payer credentialing and other critical physician processes. Even though this isn’t the same as being debarred from a federal program, it’s a federal penalty, and I can foresee questions like, “Have you ever been investigated for information blocking or been subject to review by the Office of the Inspector General?” or something similar.

Physicians and those who are now subject to these rules need to educate themselves about the policies and procedures that are related to information blocking and what is required of them for patient access and use of electronic health information. This means looking at both federal and state laws. They will also need to update their practice’s policies and procedures if they don’t already address the issue, and train staff on how to deal with patient requests and how to remain compliant. If they are working with a vendor that is less than supportive as far as release of electronic health information, they may need to consider switching platforms so that they don’t place themselves at further risk. We all know how much fun switching EHRs can be, so hopefully vendors will step up where needed.

Although I don’t find enjoyment in seeing physicians subjected to additional regulatory burden, I support this as a patient. I had an episode of care last year where I saw a new provider and was reassured that my presenting problem wasn’t concerning. I also had a minor procedure performed at that time for something that was a nuisance, but not a long-term health risk. I didn’t think twice about wanting to see a copy of the office note, because the situation seemed so minimal and the physician was someone who I trusted.

Fast forward to 2024 and now that visit might be important related to a current health issue, and the office — which is subject to the provisions of the 21st Century Cures Act — doesn’t even have a patient portal where I can see my notes. They also won’t fax me a copy of the note, but offered to read it to me during what was probably one of the most ridiculous patient / office phone calls that I have ever experienced. Guess what? The note documents only the procedure, leaving the patient scratching her head as to why the other issue wasn’t documented.

You can bet that I am going to be assertive about seeing notes from every visit moving forward, and when I select new physicians, I’m going to be specifically asking about their EHR, patient portal, and how they release copies of visit notes and pathology. I’m probably going to become “that patient” who rolls in with her giant folder of information, because I don’t know if I can trust people to have the right information for the right patient at the right time in the care process – a fact that is very discouraging when living in a large US city in the year 2024.

We owe it to our patients to do better, whether we’re clinicians, solution providers, technology companies, or others that support healthcare. Even if you’re not currently a patient, some day you will be. And if that day turns out to be one where you get news that makes it seem like one of the worst days of your life, you may have a different understanding than you have now. Why not work to make things right before that time comes?

Have you, while in the patient role, experienced information blocking? How did it impact your care or make you feel? Leave a comment or email me.

Email Dr. Jayne.