New federal rule affects psychologists with electronic health records

Psychologists who use electronic health records (EHR) have to be compliant with the new federal “information blocking” rule by April 5.

The rule, issued in March 2020 after the start of the COVID-19 public health emergency by the Department of Health and Human Services (HHS), prohibits practices by health care professionals that involve implementing technical, business, and administrative processes that prevent the free flow of electronic health information (EHI) among health care entities and patients.

There are currently no penalties for non-compliance (see last FAQ).

To help with compliance, APA Services has provided:

• A PowerPoint on information blocking (PDF, 293KB) from our Practice Leadership Conference in early March.
• Detailed FAQs about the information blocking rule containing updated information on this and other topics aimed at psychologists who will need to comply with the rule.
• Recordkeeping, Patient Access, and Other Legal and Risk Management Issues (presentation recording, 1:02:15) The Information Blocking/Open Notes Rule went into effect April 5, 2021. This changes how psychologists with sophisticated systems keep records and give patients access to them. Our panel of legal and risk management experts walk you through how the rules and other issues impact your practice.

Read on for answers to some frequently asked questions about the rule and how it may impact you.

Note: This FAQ and the detailed FAQs that accompany it were updated on March 26, 2021.

In general, information blocking is a practice by a psychologist that is likely to interfere with access, exchange, or use of EHI by the patient. Examples include restricting patient access more than permitted under the Health Information Portability and Accountability Act (HIPAA) privacy rule and state law, or disabling a capability in your EHR system that facilitates patient access.

However, if the practice falls into one of eight information blocking exceptions, it’s not considered information blocking within the context of the rule. Key exceptions include patient harm and privacy protections in HIPAA, and access being infeasible (e.g. your EHR system doesn’t have the capacity to allow instant patient access).¹

This rule applies to all psychologists who use EHR systems, including systems that are not certified by the HHS Office of the National Coordinator for Health IT (ONC). Psychologists are not affected if they keep only paper records or electronic records that are not part of an EHR.²

The compliance date for the rule’s information blocking provisions is April 5, 2021.³

The rule doesn’t change HIPAA’s rules about what types of health information patients can access in their health records. Where the rule requires instant access, however, it eliminates HIPAA’s 30-day time frame for responding to patients’ requests for access to their electronic records.

Compliance requirements under the rule are most extensive for psychologists working with sophisticated EHR systems certified by ONC. (See slides 6–7 in the Power Point [PDF, 293KB] that accompanies this update.)

Psychologists who work in hospitals and health care organizations were the first to be affected by the rule because many of these groups rushed to implement major changes to their large EHR systems by the rule’s original November 2020 compliance date. These organizations control their EHR systems and must make available enormous amounts of health data across different departments for on-demand electronic patient access. As those organizations made changes to comply with the rule, psychologists in those organizations are seeing changes to certain EHR procedures. For example, some hospitals are eliminating internal systems that allow automatic delays before certain records are made available in the EHR or that allow easy designation of “sensitive records” that make them less accessible in the EHR system.

Psychologists using EHRs outside of hospitals and health systems will still need to comply with the rule. They will need to find out if their EHR vendor will be making updates to the system over the coming 12–36 months to allow the EHR to be certified, and facilitate direct patient access in compliance with the ONC final rule. However, if the EHR vendor chooses not to obtain health IT certification from ONC, it may not plan to make any changes.

Most EHR systems commonly used by psychologists in small practices do not have this capability and are not likely to develop it in the near future because it’s expensive. Currently, the rule does not require psychologists to switch to EHRs that have direct access capability. However, psychologists with non-certified EHRs should become familiar with the “unfeasible under the circumstances” Information Blocking exception discussed in FAQ 2.C in the detailed FAQs at the link at the end of this article.

Psychologists in independent practice should take additional steps, such as assessing their administrative practices around patient access to check for unintentional information blocking. For example, they should:

• Look for unjustified barriers/inconvenience imposed on patients trying to access their record
• Check whether they have long forms that patients must fill out to request access
• Consider whether patients must answer questions or provide information not essential to your response to their request
• Consider whether the practice offers limited or inconvenient times for patients to come in to inspect their records

There are currently no penalties for providers who do not comply. Enforcement provisions will need to be developed in future regulations. However, psychologists involved in federal insurance programs like Medicare and Medicaid could be included on a published list of providers if they cannot attest to their compliance with information blocking.

Please visit Detailed FAQs about the information blocking rule for more information on this and other topics aimed at psychologists who will need to comply with the rule.

Thanks to the California American Psychological Association and the Massachusetts Psychological Association for their helpful edits and comments on the original version of this article and the detailed FAQs.