Rhonda L. Anderson, RHIA, PresidentKhaleelah Wagner R.H.I.AICD-10 Certified, B.S.

The Impact of the Manual & EHR and the Legal Aspects

April 17, 2013

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Objectives

• To identify the requirements for a legal health record

• To multiply documentation as a reason for legal process

• To increase quality of clinical decision making support to attain a legal health record for all purposes– Document quality of care– Reduce lawsuit protected– Meet regulatory requirements

• To identify methods to assist with Legal Health Record

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Overview

• Legal Issues• The Role of IDT• The Role of the HIM Consultant• The Role of the HI/Record Department• Destination or Journey?Destination or Journey?

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Definitions

• Integrity – HIPAA Security Rule Style• Integrity – Federal Rules of Evidence Style• Integrity – The Medicare Conditions of

Participation• Integrity – The Legal Health Record• Integrity – The Provider Perspective• Integrity – The resident Perspective• The Official Resident Record

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Integrity – The HIPAA Security Rule

• EHR first concern is that the record has not been altered or destroyed in an unauthorized manner:– 45 CFR § 164.312(c) – protect ePHI from alteration or

destruction in an authorized manner (at rest)– 45 CFR § 164.312(e)(2) – implement security measures to

ensure that electronically transmitted ePHI is not improperly modified without detection until disposed of (in motion)

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Integrity – The HIPAA Security Rule -2

• Second concern is making sure that you know who is assessing, making entries in, and modifying records:– 45 CFR § 164.312(a)(1) – implement technical procedures

to allow access only to those persons or programs that have been granted access rights

– 45 CFR § 164.312(d) – implement procedures to verify that a person or entity seeking access to ePHI is the person claimed (i.e., who he, she, or it purports to be)

– 45 CFR §164.312(b) – implement mechanisms that record and examine activity to information that contain or use ePHI

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Integrity – Federal Rule of Evidence• The authentication rules (901 and 902) require a

showing of process integrity, not data integrity – if you can show process integrity, data integrity is presumed manual or EHR integrity of the medical records is a “pearl”.

• Rule 901 requires evidence to prove that the information is what it purports to be:– Testimony of a witness with knowledge– Lay (handwriting only) or expert comparison– Public record or report – “authorized” by law to be record & filed– Proof of the function of a process or system – evidence

describing a process or system used to produce a record is accurate; both clinically & meets regulations

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Integrity – Conditions of Participation• All entries in the medical record must be dated,

timed, timed and authenticated, in written or electronic form, by the person responsibility for providing and evaluating the service provided. For authentication, in writing or electronic form, a method must be established to identify the nose.

• Auto-authentication in which a physician or other practitioner and authenticates an entry that he or she cannot review, or that the entry cannot be displayed, is not consistent with these requirements

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Integrity – Conditions of Participation -2

• To sign – you can auto sign, i.e., sign on and that attaches auto-signatures without approval or “special key” – that is not a legal signature

• There must be a method of determining that the practitioner did, in fact, authenticate the entry after it was created.– Where an electronic, medical records is in use, the

facility must demonstrate how it prevents alterations of record entries after they have been authenticated (Interpretive Guidelines)

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Integrity – The Provider Perspective• Providers control health record information and

are responsible for completeness, accuracy to meet legal requirements, support quality of care, provide adequate high quality services to avoid legal regulating risks.

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Integrity – The Provider Perspective• Physician Order Entry – cannot be entered by a

non-licensed person unless that licensed person can verify/note the order for accuracy of the order. If this is not possible then a non-nurse cannot enter the orders.

• (thus a nurse must enter all orders in the KNS system ??)

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Integrity – The resident Perspective• Records are accurate – reflect my care, treatment

and show quantity of those services• Residents can request for Review manual or

electronic records (HIPAA indicates they may request the electronic copy of the record in a specified form or format – the facility may not be able to comply and if not will need to offer a copy.

• Residents can request Amendments (the evaluation of allowance of amendment is up to the facility – a resident may place their own notes; follow the HIPAA Amendment policies and procedures

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INTEGRITY – THE PROVIDER PERSPECTIVE• IDT Notes in the record by the IDT? What makes

them legal? What are the issues?– One person records the notes and appends his/her name

when in the computer by the sign on.– Print the IDT note and indicates all the names of persons

who were in the meeting. It is a record by one person – not all have to sign, but the person entering the note and signing is responsible for the accuracy.

– Other IDT members are accountable for accuracy (not signing does not make them not accountable

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INTEGRITY – THE PROVIDER PERSPECTIVE• IDT note placed in the record:

– Signed by the person making the entry? – Signature in the computer and not on the paper.

• WHICH IS THE LEGAL MEDICAL RECORD??– (the one in the computer)

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Integrity – The Resident Perspective• E HR is not different from the manual record – the

non-compliance, legal issues can be the same; i.e., accuracy of documentation (brought out by recent CAHF RAP Sessions still applies with manual and electronic

• Many of the law suits are from discharge residents and families from those residents who expire

• ???WHY??? What are the documentation issues???• What were and are the high risk resident/s and

families and what are the conditions? WHY?? WHAT IS DONE TO SATISFY THE SITUATION/s??

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Legal Health Record (Medical Records• Facility will:

– Create and maintain health records– The business and legal needs that will not be

compromised– Identify the medical record– Specify those documents sources & location of the

information manual/electronic– Defines the medical record for clinical business & legal

purposes– Ensure that the integrity of the health record

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Fundamental Information

• Health record of this facility for clinical business & legal purposes during and after the transition to e-records to ensure the integrity of the health records is maintained during and after this period so that it can support clinical business & legal needs

• Defines “legal health record” as:– Generated at or for a healthcare organization as its

business records• Legal defense• Survey resource tool• Release upon resident or other

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HIPAA Designated Record Set Manual SystemDocument Other Facility

The Official resident Record

Electronic Health Record

Official resident Record

EHR Systems

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Hybrid Records

• No one department has total control over the manner in which data is exchanged, modified, stored, transmitted, etc.

• Does each “silo” “department” treat the same elements of data similarly?

• Are records documentation and correction tasks coordinated across the facility?– PT / OT– Documentation– EHR Systems? Vs Manual Systems?– What are the issues?What are the issues?

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The “Source”

• EHRs do not unnecessarily preserve data content (regardless of format) when converting from SOURCE (point of data entry) to OUTPUT (later reproduction for care or release of information

• “Scanned” paper record or printed doc = Electronic data are IDENTICAL

• If the data the clinicians are on the floor when treating the resident “SOURCE” cannot be reproduced exactly in the same detail at a later time (OUTPUT), then the SOURCE data, and NOT the OUTPUT data, is the legal EHR

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Legal Issues

• The Impact of E-Discovery on resident Record Maintenance and Production – Will be our future challenge

• Compliance with the Security Rule Is NOT Enough• Compliance with the Accuracy of Documentation

timely, clinically, accurately including legal correction and amendments

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Legal Issued -2

• Common Deficiencies found– Forward charting– Order not accurate and/or not entered– Late entry for Therapy Orders– Blanks– Lack of signatures– Lack of timely and clinically complete (with good follow

through on key clinical issues)

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E-Discovery & resident Record Maintenance – A Red Flag• These amendments DO NOT EXPAND what is

discoverable• These amendments DO NOT REQUIRE health care

providers to artificially add any document types or data types to the official resident record

• Amending a record must be easily tracked and must be clear as to the legal record, i.e., a corrected “paper” printed document be not the legal record if you have not defined it as such and must be clearly related the two

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Security Compliance

• If your system goes down due to attack, what risks to resident care?

• If your documentation is corrupted, what risk to resident care?

• “Security is a PROCESS, not a PRODUCT”• Be sure your Security Grid in your HIM/Record

Manual or your E HR is complete and accurate for a facility.

• i.e., who can enter, view, print documents and does it match their assignments.

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Accuracy & Compliance

• Ring a bell??

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Accuracy & Reliability• Incorrect recording of the resident’s demographic

data• Documenting the wrong resident record• Incorrectly identifying the ordering physician on a

laboratory report• Failure to:

– Timely communicate relevant EHR information among caregivers

– Draw attention to clinically significant events within the EHR/manual record

– Identify documentation patterns suggesting potential risk to the resident (manual or e-record)

– C of C charting accuracy

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Accuracy & Reliability -2

• User marks – “Normal” for “All systems reviewed”• Database records – “Normal” for “All systems

reviewed” element marked all others remain null• Physician orders printed and placed in wrong

medical record– Sometimes with wrong name– Sometimes correct name but placed in wrong chart– How do I correct?– H.O. #1 Interdisciplinary Progress Notes Documentation

Guidelines (Keane Care) A004 of the HIM/Record Manual

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Accuracy & Reliability -3

• EHR Documentation

Advantages DisadvantagesLess likely that important documentation will be inadvertently lost or destroyed

Clinicians can select wrong record items from drop-down menu

Templates can guide documentation elements essential to appropriate care are not ignored

Templates might contain elements not relevant to care of a resident and therefore, might cause the narrative of the resident’s care to be lost in extensive, irrelevant documentation

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Accuracy & Reliability -4

• EHR Documentation

Advantages DisadvantagesStructured documentation is critical for retrieval, reporting, data mining, health information exchange, etc.

Some clinicians are reluctant to document resident encounter information directly into EHR templates

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Fundamental Information -2

• Custodian of the legal health record is personnel and Health Information Management professionals in collaboration with information technology personnel

• Health Information Management professionals & the designated clinical and support staff within the organization oversee the operational functions related to collecting, protecting, and archiving the legal health record, while information staff manages the technical infrastructure of the electronic health record

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Fundamental Information -3

• The legal health record:– A formally defined legal business record for a healthcare

organization– Document of healthcare services – Utilizes multiple types of manual and media is known as

the “hybrid” record and excludes:• Medical records not normally made and kept in the regular

course of the business• Metadata• Computer system processes, online/manual audits, guidelines,

quality assurance processes, alerts, mock surveys if identified as QA documents

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Legal Medical/Health Record

• Documenting health care or health status “accurately documentation = legal protection”

• Types of documentation that are part of the legal health record in separate and multiple paper-based of electronic/computer based databases

• Identifiable source data from which interpretations, summaries, notes are derived if they are provided, – Example, pictures – no pictures with personal cameras,

must be facility camera and protected – same as other PHIs

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Administrative Data

• Same level of confidentiality as the legal health record– Authorization forms for release of information– Protocols, care guidelines, sample care plans, Care Area

Assessment Resources– Resident data reviewed for quality assurance or

utilization– Consultant reports – de-identified resident information– Any other sources that do not individually identify

resident data

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Responsibilities

• Facility will NAHC AHIS staff will:– Create and maintain a matrix to document and track the

source, location and media of each component of the health record who has access to what records in the computer• Do they need it for their jobs? – HIM manual has a goal each

facility

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Downtime Documentation

• Ensure an accurate legal record, addressing documentation when EHR systems are unavailable due to planned/unplanned downtime are identified in the EHR procedures

• Immediately begin documenting resident care on downtime health record forms according to the procedures

• Documentation process accounts for the length of downtime– Start & stop times of the downtime are documented in

the health record to ensure accuracy of the legal record

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Downtime Documentation -2

• Manual record many be entered into the electronic health record

• Manual documents will be kept for the length of the time of the retention of records

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Document Completion (Lockdown)

• Electronic record final document when entered if the documentation identifies the date, time of entry and signature

• Point of final documentation is identified by:– Finalizing /closing the document within 24 hours– Review carefully

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Amendments & Corrections

• Made to the EHR or manual records will be:– Chronological order and included with the original

document both on-line and in printed format– May be entered in an addendum

• Addendum automatically locks and registers the entry date, time and the electronic signature of the user

• Does not modify the original entry– How to correct documentation?

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Amendments & Corrections

• User may request that the DON or designee opens the finalized/closed document. Upon approval and after opening the document, the user will indicate in the last comment field that the document has been modified.– Note in the addendum and the body of the note that

corrections and/or modifications were made to the document

– Modification of data can only be made by the original user

– There are questions – be legal – anything changed is trackable

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Authentication

• The person entering the data should authenticate individual health record entries. Electronic entry should automatically record the person documenting the care with his or her full name the date, and time.

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Late Entries

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• Are entered with current date and time and will reference both of the text

Entries by Other than the Person Observing…• or Originally Responsible for an Entry; Late

Entries by another individual than the person making the observation or the identified person who should have made the entry

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Entries by Other than Observer or Person Originally Responsible • Entry of this type of information would generally

only be the case if there is a secondary record referenced

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Versioning

• Document versions exist in the electronic record, still produce the original document in the original form

• Be sure it is clear, date, time, who documented, why versions if all are to be a part of legal health record remember not mean “gone” or “not there” the imprint is discoverable

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Clinical Decision Support

• Notifications• Prompts• Alerts• (These are your protocols and your templates –

be sure they are clinically accurate and then USED)

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The Role of the HIM Professional• Be the source of knowledge about functioning

processes – be “old school” when you need to be in “New Process”

• Participate in the development and evaluation of manual and electronic systems

• Be involved in evaluating the electronic systems following of the e-records

• Evaluate the content, setting with audit systems, manual and electronic

• Evaluate the content, setting with audit systems, manual and electronic legal health record

• Evaluate the documentation to support level of care

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Destination or Journey?

• If you view medical record integrity as a compliance or technical system design task, it is a destination

• If you view medical record data integrity as a process of creating and maintaining the best official resident record possible, it is a journey

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Pearls of Wisdom

• Over the years, the key take-away is that the strength of an organization’s legal EHR depends on the accuracy and reliability of its information

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You Legal Record

EHRs or Manual•Are Legal, Business Record

•Contains confidential information•If destroyed, it’s considered spoliation

•Can be disclosed in a court of law•Will your manual Legal Record stand

up on the “stand”?

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Reminder

Those who are authorized to document within the EHR are accountable for every

EHR made, including errors.

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Thank You!

Questions??

Rhonda Anderson, RHIA, President714-299-0573

rhonda@ahis.net Khaleelah Wagner, R.H.I.A, ICD-10 Certified,

B.S.HIM Consultant909-717-7102

khaleelahwagner@hotmail.com

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