Why licensed nutritionists need to be aware of the new OpenNotes rules. 

Did you know that new legislation went into effect in April, 2021 that affects the way licensed healthcare providers share information with their clients/patients?

It's called OpenNotes.

If you're in practice, it will affect how you communicate with your clients and potentially how you take notes.

Because it's still very new, we still don't know the full implications of OpenNotes for nutritionists.

At this point, most of us with private practices are doing our best to implement the changes as we understand them.

In this episode, I share a few thoughts on my understanding of the new OpenNotes rules that apply to licensed practitioners.

Please note that these are not meant to be a full and comprehensive guide to OpenNotes for licensed nutritionists, but rather reflections on some changes that I have implemented in my own practice based on the rules, and my interpretation of how they apply. 

Consult a lawyer before making changes or decisions about how these rules apply to your own practice!

As mentioned in the episode, I've also written a full review of Practice Better software

OpenNotes Resources for licensed nutritionists

Transcript of Thoughts on the New OpenNotes Rules for Licensed Practitioners episode

Episode 26 | Thoughts on the New OpenNotes Rules for Licensed Practitioners - powered by Happy Scribe

Hi there, welcome to In the Clinic with Camille. My name is Camille Freeman. I am a licensed nutritionist and registered herbalist, and I help other clinicians who are looking to build and grow their practices or who need support with some of the more complicated cases that we encounter today. I want to talk to you about the OpenNotes legislation that has gone into effect in April of 2021 and share some thoughts and reflections on it. From my own perspective, before I go any further, let me just remind you that I am not a lawyer.

I'm certainly not a lawyer with expertize in health care law, and I'm just little old me here sharing what I understand after looking through the documents that are available online. So do not base your own decisions. Just on what I'm saying here. Please, please, please consult your people and do your own research and make sure that you feel comfortable with what you decide to do right. So with that disclaimer in mind, let me share some thoughts and reflections for those of you who have no idea what I'm talking about in April excuse me, of 2021, a new federal rule went into place.

It was part of the Twenty First Century Cures Act. And this rule dictates that certain types of clinical notes need to be available free of charge to patients and they cannot be blocked. That is the legislation. So this applies to anybody who is a licensed health care practitioner. I don't think that it specifically applies to people who are herbalists. And like I said, I'm not a lawyer. I don't 100 percent know that. But it's my understanding that this would largely be relevant if you have a license, such as being a licensed dietician, nutritionist or a licensed therapist or a licensed massage therapist or something along those lines.

So what does this mean? Essentially, it means that your clients need to have access to the information that you are keeping about them if they would like to have it, and that you can't charge the money for it. So there are certain types of notes or records that you need to be able to share with your clients if they would like to see it. This includes any notes that you made during your consultation, their history, if you've taken a history, if you have done any progress notes, updates, anything along those lines, they need to be able to have access to them if they ask for it.

There are some exceptions of things that you don't have to share, such as psychotherapy notes can be restricted if it is deemed something that might be harmful for the client or patient to read or so forth. For most of us, that is not necessarily going to apply. There is an exception for preventing harm, that means that if it is reasonable and necessary to prevent harm in this person or someone else, that you might be able to exclude it.

Same thing if there is a, you know, some kind of invisibility where it would be impossible to get them the information and so forth. But there are specific conditions that you would have to meet in order to do that. So generally speaking, what this means is that as practitioners who are licensed, we would need to have a mechanism to share our notes with our clients upon request. That means that we need to start thinking about what we're writing in the notes really carefully with the understanding that our clients might be able to see them at some point if they ask to see them.

Hopefully most of us are keeping really good notes anyway and aren't writing things there that we wouldn't want our clients to see. But sometimes we have personal notes or reflections or thoughts about the case that may be awkward or not, in the best interests of the client to share, so I know that there are some people out there who are saying that perhaps some of that type of information we could keep separately in a note that if we think that it might be harmful for the client to see it, that there may be a justification for withholding that and sharing the rest of the note.

But in order to do that, you would need to set up your notes in such a way that parts of it could be withheld and parts of it could be shared if you feel that there's a justification for doing so. So that's something to think about. If you use Practice Better or similar, there are tools where you can add sections and choose which portions to share with a client versus which not to share. But that's something that I certainly would hope that people are thinking about at this point.

Now, we do also find in this information that has been shared that people need to be making note of the start and stop times of the consultation. I think that we're supposed to be doing that anyway, but it does come up in the wording. So that's good to know. And then in terms of whether you need to share this information by default with people, this is something that has been bandied about as to whether whether this is, you know, do all clients who are coming in and working with you should be you be sharing your consultation notes with them after every single visit, yes or no.

And I did some poking around about this lately because I felt like, you know, if we don't have to do that, that it could be overwhelming to a client to see not only the recommendations or protocol that you've sent them, but also your notes. And if you work with people frequently, that's a lot of information to dig through and could be could be overwhelming and unnecessary to the client. So what I did find is a specific FAQ on health.gov, which is going over some of the requirements associated with this legislation and one of the questions on there, which I'm going to read to you, because I think it's really helpful, is do the information blocking regulations, which is 45 CFR Part 171, require actors to proactively make electronic health information available through patient portals, application programing interfaces or other health information technology? And the answer is no. There is no requirement under the information blocking regulations to proactively make available any electronic health information to patients or others who have not requested it.

All right. So if somebody does request this information, then you need to be able to provide it to them essentially immediately. There can't be a delay in the release or availability if they have requested it. However, if they have not requested it, you are not required to make it available proactively according to this particular FAQ. And that makes sense to me. So what I'm planning to do with my own clients is just to update my informed consent to make sure that people know that by request they can access my clinical notes.

I am planning to have a separate note section where I will be putting any information that I feel might be harmful for the patient to read, either because of the possibility for. You know, it's my personal reflections or things like that, or, for example, I often have things like to consider for next time and without guidance, I don't think it would be in the best interest of the client to see my notes about what I'm considering for their next visit.

They don't want them to do some of these things until we figure out what's happening in the first visit and so forth. So I'm going to add that separate section in mine. And therefore, if somebody does ask to have their notes released, I will be able to release the ones that are relevant and necessary and withhold small portions of it that I think may not be in the client's best interest to share. That is how I have interpreted it. I have no idea if there are nuances that I'm not seeing.

If this will people's understanding will change, the common practice will change and so forth. This is all very new. But I did just want to share my current thinking on the process and what I'm planning to do. I will share in the show notes the link to the FAQ from health.gov that I am using for that. And I will also share Just OpenNotes.org a link to that website, which has a lot of great info about this whole legislation, if you would like to read more about it.

I do think as we wrap up that this is this is a step forward in terms of patient or client sovereignty and advocacy in order for people to be able to access their records without paying fees to get them in a timely fashion and so forth. I know many practitioners do have concerns, especially about, for example, the release of lab reports without the client having the benefit of having their practitioner interpret them for them. And that is something that we'll have to think about.

If you do order lab tests, you are required. If the person has requested, you are required to release those results, even if you personally haven't had a chance to review them yet or contact the client or anything like that. If they've asked for access, then you have to give them access. And, you know, that's something for us to take into account. But I do just want to wrap up by saying that I see the benefit of this from the client or patient perspective.

And I appreciate the intention behind this legislation, so I know we want to do everything we can to make sure that we're in compliance and that our actions are in the best interests of our clients. All right. Thanks for listening. I hope that was helpful. And I'll look forward to talking to you again next week.

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