Special Reports / Exclusives

'Privacy Exception' No Cure for Doctors' Open Notes Headaches

4 min read
Provision is 'unworkable,' harms patients, and adds to clinical stress, doctors say
Some physicians are bridling at last week's federal advisory suggesting they can delay releasing bad news to patients' electronic health portals without violating the new federal law that requires it. Their patients just have to request the delay up front.

The framework for doing that is embedded in the "Privacy Exception," one of eight exceptions in the new Information Blocking or "Open Notes" rule. This one allows "actors" (i.e., clinicians) to withhold releasing health information to a patient if that release could harm the patient, according to a spokesman for the Office of the National Coordinator for Health Information Technology (ONC), which is administering the rule.

According to the ONC's website, "sub-exception e" specifies that the clinician would not be violating the rule if "the individual (patient) requests that the actor not provide such access, exchange, or use of electronic health information," and if the clinician did not improperly encourage or induce the patient to make that request.

The Information Blocking rule, which took effect April 5, requires physicians and other providers to make electronic records in 16 categories -- from visit notes and imaging studies to lab reports -- available on the patient's health portal as soon as they are available. The law is intended to reinforce the patient's right to their own health information promptly and electronically so they can make decisions about their follow-up care, schedule appointments, and arrange for family assistance without waiting days to weeks for another appointment or the doctor's call.

But the American Medical Association (AMA) and the AMGA, which represents 450 multispecialty groups, object to the plausibility of tailoring release of medical records to each patient and to each of 16 categories of records the rule requires.

The ONC "is making assumptions that healthcare systems, physician practices, and electronic health record vendors have the technology, processes,…
Cheryl Clark
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