Physicians Work With TMB to Usher Medical Records Rules Into the Electronic Age
Law Feature — July 2015
Tex Med. 2015;111(7):53-58.
By Joey Berlin
Electronic health records (EHRs) and the requirements for maintaining them present a seemingly endless array of complications for physicians — with penalties potentially awaiting doctors who don't follow the Texas Medical Board's (TMB's) recordkeeping rules.
Revisions to those rules, which TMB adopted in the spring, attempt to underscore the importance of accurate information in the data-saturated EHR system and make doctors' electronic reporting requirements clearer.
TMB proposed the rule changes to address three problems the board identified with EHRs:
- Records for different patients that looked too similar to one another;
- Relevant electronic communications not being properly reflected in the medical record; and
- Pre-populated fields in EHRs implying tests had been performed that, in fact, had not.
TMB adopted the proposed rules on April 10 and published them in the Texas Register on May 15. They took effect on May 20.
The rules spell out that physicians will be required to document in the medical record any communications involving medical decisions and must ensure "non-biographical populated fields" in the record contain accurate information.
Dallas pediatrician Joseph Schneider, MD, chair of the Texas Medical Association Council on Practice Management Services, interpreted the changes as an attempt to bring TMB's rules into the electronic age.
"We've got patients tweeting; we've got them Facebooking," Dr. Schneider said. "It used to be that communications only occurred when you passed your patient in the store or you took a phone call. Now, there are all sorts of ways that communications are coming to a physician."
"To me, the most important thing that stands out is that we really need to be aware of clinical information that's being pulled in from other sources," said Fort Worth pediatric emergency medicine physician Matthew Murray, MD, chair of TMA’s Ad Hoc Committee on Health Information Technology. "Whether we're copying and pasting information from an old note to a new note or using templates that automatically bring in clinical information … it is our responsibility to make sure that the information that got pulled in is accurate."
As originally published in the Texas Register in January 2014, the rules would have required physicians to include in the medical record "a summary or documentation memorializing any substantive communication that is transmitted or received by the physician and relates to the health, condition, diagnosis, treatment or care of a patient, including, but not limited to, communications that are verbal or recorded and transmitted via any medium."
TMA had concerns with potential unintended consequences that might follow the adoption of such rule language. Then-TMA President Austin I. King, MD, said the association was concerned about "the administrative burden placed on physicians to compile all such information, the potential negative impact to patient care caused by excessive information in the medical record, and potential selective enforcement of a rule that would have almost certainly been impossible to fully comply with."
He went on to note that the proposed standard that a communication in a medical record had to be "substantive" would have been "difficult for physicians to interpret, leading towards overinclusion (and its attendant problems) or well-meaning physicians failing to comply with a rule (and subsequent enforcement)."
In early 2014, TMA asked the medical board to convene a stakeholder group to examine the implications of proposed EHR rules and alternatives to addressing the three problems that had been identified. The medical board assembled such a group last August. Members included physicians, EHR experts, attorneys, community members, and employees of state agencies.
The board's new rule language on documenting patient communications underwent some tweaking before taking on its final form, which requires physicians to document any communication the doctor transmits or receives about which "a medical decision is made regarding the patient."
TMA was more supportive of the eventually adopted language.
Dr. Murray says the final rule's requirement that physicians document communications with patients that involve medical decisionmaking is sensible.
"The concern was over the possibility that physicians would be required to record every conversation with a patient, which would be burdensome and really wouldn't add to either the quality of care or to the accuracy of the medical record," he said. "So with that discussion, we were able to at least narrow the communications down to those that impacted decisions made on patient care, and it is reasonable to include those in the medical record."
To address the concern of EHR fields being improperly pre-populated, TMB adopted a new subsection in the rule that states, "All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician."
TMB Executive Director Mari Robinson explains the board began to see instances of EHR computer systems that were pre-populating test results as normal, even when the tests or evaluations hadn't been performed.
"So the board wanted to make very clear that the only type of things that should be pre-populated are things like name, date of birth, that type of information," Ms. Robinson said, "versus this idea of pre-populating an outcome of an evaluation or a test when that has yet to be completed."
TMB adopted the non-biographical populated fields rule provision despite concerns voiced by Dr. King in TMA's comments about the revised rules. He wrote the section "may be confusing to physicians" and that the phrase "non-biographical populated fields" could potentially be the biggest source of confusion.
TMA suggested changing the provision to refer to "all populated fields containing clinical information" within the record.
Although TMB published that portion of the proposed rule as originally drafted, it did decide to take TMA's suggestion to publish a list of frequently asked questions (FAQs) about the new rules, particularly addressing which fields fall under the "non-biographical populated fields" category. TMB will publish the FAQs on its website, www.tmb.state.tx.us, in the future, TMB spokesperson Jarrett Schneider says.
The rules clarify physicians must maintain an adequate medical record of each patient, "regardless of the medium utilized."
Focusing on Patient Care
Dallas orthopedic surgeon Wynne Snoots, MD, whose term on the medical board expired this year, was instrumental in the proposal of the new EHR rules. Dr. Snoots says the changes were a "reactionary measure" to adjust for the way governments, insurance companies, employers, and hospitals are driving the development of health information technology.
Dr. Snoots says those entities are more interested in "population statistics" and the particulars of a patient encounter that pertain to physician payment than in the information that helps the physician treat the individual patient.
"What they're after is the support for the [medical] bill … so the physician's caught in the middle," Dr. Snoots said. "He has to fill out a specific set of data elements, page after page of stuff, in order to get paid. That's why he looks at the computer when he's seeing you, instead of being able to listen to you and look at you and touch, and all the other things important for a meaningful patient-physician relationship. And the computer does not let us use natural language or text to provide an outline of what was really done to provide the basis for the decisionmaking. And also on the EMR side, there's really no emphasis to understand the outcome."
The changes to the rules, Dr. Snoots said, are an effort "to be sure that the content we need to make a decision about the care of a patient is based on fact, not on just guessing."
The data that pile up in a patient's EHR can create a headache for doctors who are primarily interested in the information that pertains directly to a patient's care. For example, Dr. Murray relayed a story of receiving a recent patient from another emergency department (ED) after a two-and-a-half-hour stay.
"That hospital is on an EMR, and my hospital is on an EMR. But because those EMRs don't communicate with each other, the patient record is printed and sent with the patient when he or she is transferred," Dr. Murray said.
"That particular record was 50 pages long. And out of those 50 pages, only two of them had the clinical information that I needed in order to assume care of the patient at that point. The volume of information that's captured in an electronic medical record is impressive, but much of it is not clinically useful. It was really a burden to sort through the volume of information I received to find out what happened in that two-and-a-half hours in the other ED. And that happens every day."
Dr. Schneider says EHRs "give us the ability to make mistakes — new kinds of mistakes that we probably would never have done in the paper world."
A TMB position statement on EHRs states that the widespread implementation and use of EHRs has compromised the board's ability "to provide efficient and adequate oversight to the practice of medicine." The position statement emphasized that to improve patient care while using EHRs, the necessary data elements in the record need to be properly identified, recorded, verified, and tagged.
"In recent years, TMB has observed progressive difficulty obtaining medical decisionmaking information from current records, which interferes with the accomplishment of our mission," the position paper states. "It is not the role of the TMB to endorse EMR software or regulate technology. However, it is clearly within the TMB's scope and oversight duties to set forth standards and expectations for creating and maintaining a useful, meaningful and readable medical record."
The medical board's disciplinary rules establish low- and high-sanction guidelines for violations of the Medical Practice Act or TMB rules. A remedial plan for failure to keep proper medical records carries a fine of $500 on the low end, along with continuing medical education (CME) in the "appropriate area," such as medical recordkeeping. On the high end of the guidelines, an order can include a $2,000 administrative penalty. For example, in November 2014, the board issued $2,000 penalties to two physicians. One physician failed to document the rationale for the care of a patient, according to a TMB news release. The other physician inadequately documented conversations with a patient pertaining to the rationale for surgery. If a physician has been issued a prior order by TMB for inadequate recordkeeping, he or she may be required to take a Physician Assessment and Clinical Education course in recordkeeping.
The board issues administrative penalties at its discretion, however, and can go north of the $2,000 penalty. For example, last April, the board issued a $3,000 penalty to a physician who admitted failing to adequately document medical records for approximately 11 visits and to "making late entries without indicating the amendments were not made contemporaneously with original notations," TMB said in a news release.
Ms. Robinson says the board's enforcement activity is complaint-based in the majority of cases. It only has the authority to initiate inspections without a complaint in cases involving office-based anesthesia and pain management. TMB can file a complaint, Ms. Robinson says, "but that generally only happens when we receive information through our offices another way," such as if the board performs a CME audit and finds a physician doesn't have the proper credits or if a physician has been found guilty of a crime.
Depending on the final resolution of a case, the board may also be required to report a violation to the federal National Practitioner Data Bank, which has its own guidelines about what certain entities need to report.
"So it could be that there was a small error, and the board feels that the appropriate resolution is a remedial plan, which is a nondisciplinary order that is not reportable to the National Practitioner Data Bank," Ms. Robinson said. "However, there could be a really, really large and egregious set and pattern of violations. So depending on the penalty there, if a disciplinary action is taken, it is absolutely reportable to the National Practitioner Data Bank. So anything connected with the practice of medicine that's a disciplinary action in the vast majority of cases is federally mandated to be reported."
Ms. Robinson says TMB does not keep statistics on how many remedial plans it issues for medical record violations. For more information on remedial plans and TMB's enforcement process, visit www.tmb.state.tx.us/page/enforcement.
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Medical Records Q&A
The TMA Knowledge Center receives many questions regarding medical records. Here are the top five:
Q: How much can we charge to supply copies of records? Are the fees different for records supplied in electronic format?
A: Per Texas Medical Board rules, physicians may charge up to $25 for the first 20 pages of a paper record and 50 cents per page for every copy thereafter. For copies of an electronic record, doctors may charge up to $25 for 500 or fewer pages, or $50 for more than 500 pages. However, simply charging the maximum amount permitted under the rules is not sufficient unless such a charge is "reasonable" and "cost-based."
Q: Can we forward copies of records we have received from other physicians?
A: Yes. In fact, you are required to do so when someone requests medical records. The Medical Practice Act requires physicians responding to a request for records to provide "records received from a physician or other health care provider involved in the care or treatment of the patient." The Medical Practice Act contains no exception for documents stamped "Do Not Copy or Forward" or "Not for Re-Release."
Q: Can we release medical records of deceased patients to their family members?
A: A family member must be a "personal representative" of the deceased to consent to the release of the medical records. A "personal representative" is someone who has the authority to perform transactions on behalf of the deceased's estate.
Q: Can we withhold supplying copies of medical records because of a past-due balance for services?
A: No. A physician may generally retain records until payment of a copy fee is made but may not withhold copies of the records because of a past-due balance for treatment.
Q: Do I need patient authorization to forward medical records to another physician for treatment purposes?
A: No. HIPAA permits doctors to disclose patient health information to other doctors for treatment purposes without patient authorization.
For more information on medical records, see white papers and informational articles from TMA's Office of the General Counsel. If you have questions about medical records, contact the TMA Knowledge Center by calling (800) 880-7955 or by email.
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