How the Cures Act and OpenNotes Apply to Behavioral Healthcare

By TherapyNotes, LLC on November 4, 2020

Keeping good documentation can be far more challenging than providing good therapy. Third-party guidelines from licensing boards, ethics codes, and agency or practice policies often dictate when notes should be completed and what content should be included. Add insurance companies to the mix, and it often feels overwhelming to make sure your notes meet the requirements of everyone else who is not in the room. But in the end, your notes are meant for those actually present: you and your clients.

Your notes help you inform the course of treatment, providing a record of what worked and what did not or the chance to see patterns of symptoms of behaviors. Your notes also give your clients continuity of care in the event they switch providers or return for another episode of care. Recently, you may have seen information about yet another requirement for your documentation with the introduction of the 21st Century Cures Act. The Cures Act puts in place new rules about sharing notes with clients that take effect on November 2, 2020. Let’s take a look at how this may affect you. 

The Cures Act prohibits a practice called "information blocking," or activities that interfere with a patient's access to electronic health information. This regulation is designed to give patients direct access to clinical notes from their providers, a concept promoted by the OpenNotes movement. It is intended to help facilitate information sharing and encourage transparency in the clinical process. While certainly noble and helpful in many cases, the idea of clients having direct access to their notes may give many therapists pause. But, there's good news: it is highly likely that this regulation does not apply to many therapists in private practice. 

This regulation is part of the ONC Certified Electronic Health Records Technology (CEHRT) program. The CEHRT program is a set of standards established by the federal government to ensure that EHRs can perform certain functions and work together to share information. However, these standards often apply best to other medical professionals and environments, such as primary care doctors and hospitals. You may remember the concept of “meaningful use and how psychologists and other therapists were specifically excluded from participation. Therapy does not involve ordering imaging tests or bloodwork or quantifying observations like blood pressure and heart rate. The qualitative nature of therapy documentation does not fit well with the model used for sharing health data, and additional privacy concerns often keep therapy information out of this process. 

Since these standards do not apply well for therapists, and in many cases therapists are unable to participate in any benefit programs that require CEHRT technology, TherapyNotes™ has not chosen to participate in the voluntary certification program. Since TherapyNotes™ is not part of the CEHRT program, the regulation does not apply, and your clients will not have direct access to their progress notes through the system. When your client does request access, TherapyNotes™ makes it easy to download a copy of your clients’ notes (just make sure they're stored in a secure location!), and you can share these notes securely with your clients via TherapyPortal™. You can store especially sensitive information in process notes, which are typically considered separate from the rest of the record and are generally not released.

* The content of this post is intended to serve as general advice and information. It is not to be taken as legal advice and may not account for all rules and regulations in every jurisdiction. For legal advice, please contact an attorney.

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