Understanding patients’ rights to their medical records

By Swapna Bhatia, MPH, manager, health technology & informatics, April 1, 2021

Each month DermWorld tackles issues “in practice” for dermatologists. This month Swapna Bhatia, MPH, the Academy’s Health Technology & Informatics manager, offers a summary of patients' rights to their medical records.

A patient has the right to view and access their medical records at any point in time. Having access to their records should empower a patient to be more in control of their health and well-being, as well as allow them to make changes, input and update any missing information, monitor underlying and/or chronic conditions they may have, follow treatment plans, and much more. Although patients have the right to access each part of their medical records at any point in time, the logistics of making this happen has presented some practical and, potentially, ethical challenges. For example, in what time frame must patients receive their lab or biopsy results? Many institutions have interpreted the laws governing patient access to medical information to require release of results simultaneously to the patient and ordering health care provider immediately once they become available. Because many patients now have electronic access to their records, it is possible, and perhaps likely, that in many cases, patients will view their results before their physician has even had a chance to see them. Your practices may already be handling the fallout of this presumably unintended consequence of well-intended legislation.

What regulations changed to allow this to happen?

Effective January 2019, CMS required that Merit-based Incentive Payment System (MIPS)-eligible physicians provide patients access to view their health information within four business days for the "Provide Patients Electronic Access to their Health Information" measure under the Promoting Interoperability MIPS category. Beginning in April 2021, the Office of National Coordinator for Health Information Technology (ONC) has confirmed that office notes, lab results, and other diagnostic reports should be available to patients as soon as possible and within a “timely manner.”

The ONC also requires that physicians, hospitals, labs, and certified HIT developers and vendors comply with an information blocking rule which mainly prohibits the blocking of electronic health information (EHI), unless an exception applies to justify such delay or withholding of such EHI. Under HIPAA, dermatologists are covered entities (CEs), who CAN share protected health information (PHI) for treatment, payment, or operations, but it was not REQUIRED. Under the new Information Blocking Rule, health care providers MUST share protected health information with other CEs and others as directed by the patient.

The ONC has noted that physicians can withhold information from patients based on their professional judgement and not run afoul of the information blocking requirement, but only if the information will cause harm to the patient. For example, if the purpose of keeping lab results from the patient until the physician can communicate with them directly is to prevent harm, then it is allowable under specific circumstances and on a case-by-case basis. However, the majority of cases would most likely not fall into this category and would be considered information blocking if the results are not released to the patient in a timely manner. As the ONC continues to clarify its rule, further compliance guidance will be forthcoming. The Academy has developed resources on interoperability and patient access including a list of frequently asked questions.

What are the concerns?

Many dermatologists are concerned that patients will receive lab results and other diagnostic reports prior to their having any discussion with them. For example, what if a patient receives their biopsy report and discovers they have a melanoma? The impact of learning about a potentially serious diagnosis can be lessened when delivered by a caring physician who can explain next steps and provide reassurance about the care that will be provided. Also, in many cases, lab or biopsy results alone do not establish a complete or clear diagnosis, and must be considered in context of the entire clinical picture. As such, results released without explanatory discussion may be misleading; at the very least, they may result in unneeded anxiety and frantic phone calls to your office.

As a dermatologist, what can you do?

Currently, there are no national guidelines or practices for how test result notifications should be released, especially through patient portals or reports coming directly from the labs to patients. Whether you are a part of a small, multiple, or larger practice setting, it generally is up to your practice or your risk management team to determine how to handle a situation like this. To avoid any perception of information blocking, some institutions have chosen to release all results to patients immediately upon completion.

The Academy has come up with a few approaches that could help reduce this burden:

• Be transparent with your patient. Tell them when ordering the test or doing the biopsy that it is likely they will receive their lab results before hearing from you or your office. Explain why this is happening, if you like. Explain to patients when they should reasonably expect to get a call from you or your office to discuss the results, even that you may need additional time, or let them know to expect a message explaining the results through your patient portal. If you prefer, schedule a follow-up visit to discuss results. Reinforce this plan in your after-visit patient instructions.

• Communicate. This will help build and maintain a strong physician-to-patient relationship while being open and communicative every step of the way, starting at the initial appointment and any follow-ups thereafter. Discuss your differential diagnosis and if you think you know what the result will likely be; consider explaining this when you do a biopsy or order lab work. If possible, you might even want to outline potential next steps. Ideally, this will help prepare your patients to better receive and, hopefully, understand their results.

Christine Sinsky, MD, from the American Medical Association (AMA) discussed “pre-labbing” in her podcast called, How previsit labs lead to richer patient-physician conversations.

• Create high-quality educational tools. Give access to your practice’s patient portal or practice website that has helpful, informational links about dermatologic diagnoses and conditions, including common and rare diseases.

The American Academy of Dermatology public website is consistently updated with resources on different diseases and conditions, and offers information on everyday care, cosmetic treatments, public health programs, and more. Physicians can also contact their state and local governments to see what recommendations and resources they can provide for patients.

• Be vocal. If you are part of a larger multi-specialty practice or larger institution that has instituted deadlines on when lab results have to be released, talk to your risk management or legal team to see if there could be a better way to release the results. Try to be involved with any type of changes and modifications, and make sure to follow up throughout the process. Speak to your risk management or legal team and make them aware of sensitive situations in which you may need to allot more time to release results to patients. Be sure to have any requests or supporting documents in writing while speaking to them.

The Academy patient access template notice (Word) is a new resource that dermatologists can customize and send to their internal departments at their practice or institution that will assist in advocating for more time to release lab results.

Remember, it is a patient’s right to access their medical records at any point in time, including any lab results they may receive before you speak to them on a certain condition or disease that has been identified. It is key to be transparent and communicative through every step of the process and to be prepared to provide them with any information they ask for. By following these few steps and being more transparent, you can ensure a healthy patient-to-physician relationship.

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