3-16-2021; 21st Century Cures Act Should Open Up Medical Notes for Patient Use; Appellate Court Rules Injured Worker Can't Sue Employer's Parent Co for Negligence and more
/Synopsis: Federal Rules Mandating Open Medical/Treatment Notes—Electronic Medical Records may be Free for Claimants in WC across the U.S.
Editor’s comment: Taking effect in twenty (20) days or on April 5, 2021, rules implementing the bipartisan federal ‘Cures Act’ specify that clinical/medical notes are among electronic information that must not be blocked and must be made available free of charge to all patients. I assure you this includes workers’ comp claimants who obtain care. To meet the interests of some patients, the rules allow specified exceptions that I feel make sense—see the two exceptions at the bottom.
I continue to monitor details affecting the implementation of what is also called the Information Blocking Rule and watch this space for updates as they appear.
Federal Rules on Interoperability and Information Blocking, and Open Notes
The program rule on Interoperability, Information Blocking, and ONC Health IT Certification, which implements the 21st Century Cures Act, and requires U.S. healthcare providers give patients access without charge to all the health information in their electronic medical records “without delay.”
Common questions about the Information Blocking rule can be found in this FAQ.
The eight (8) types of clinical notes that must be shared are outlined in the United States Core Data for Interoperability (USCDI), and include:
consultation notes
discharge summary notes
history & physical
imaging narratives
laboratory report narratives
pathology report narratives
procedure notes
progress notes
Clinical notes to which the rules do not apply:
Psychotherapy notes that are separated from the rest of the individual’s medical record and are recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session. Note: All clinicians and organizations are required to share medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.
Information compiled in reasonable anticipation of, or use in a civil, criminal or administrative action or proceeding.
What is the timeline for when these new rules go into effect?
Under this new rule, clinical notes must be shared by health systems by April 5, 2021, and shared with a patient’s 3rd party application (“app”) that may be downloaded to a smart phone or other device by October 6, 2022.
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Synopsis: Injured Construction Worker Can't Sue Employer's Parent Company for Negligence
Editor’s comment: In Munoz v. Bulley & Andrews LLC, No. 1-20-0254, 02/10/2021, the Illinois Appellate Court ruled a worker injured on a construction project could not proceed with a tort suit against the parent company of his direct employer because it secured workers’ compensation insurance coverage for him.
In Munoz, an LLC named RAR2-222 South Riverside LLC contracted with Bulley & Andrews LLC to serve as the construction manager for a project at a property owned by RAR2. The contract required Bulley obtain a workers’ compensation insurance policy for its employees. Bulley obtained a policy from Arch Insurance Group that covered its employees as well as those of Bulley & Andrews Concrete Restoration.
Although Bulley Concrete was a wholly owned subsidiary of Bulley, the companies had different presidents, employed different people and had different specialties. Bulley used Bulley Concrete workers to perform concrete work for the RAR2 project, though it did not execute a subcontractor agreement with Bulley Concrete as it did with the others.
Donovan Munoz worked for Bulley Concrete. He injured his back in December 2016 while working on the RAR2 project. He has an IL WC claim still pending.
In the civil claim, it was alleged workers placed blankets on top of freshly poured concrete to prevent it from freezing. Precipitation caused the blankets to become waterlogged, and Munoz hurt his back while trying to move one. Bulley paid workers’ compensation benefits to Munoz.
In April 2019, Munoz filed suit against Bulley, RAR2 and Behringer Harvard South Riverside LLC, another alleged owner of the building. Munoz claimed that the blankets placed on top of the concrete were worn out and riddled with holes, which allowed water penetration. He claimed this caused the blankets to become unreasonably dangerous.
Bulley filed a motion to dismiss, contending Munoz’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act. The trial judge granted the motion.
On appeal, the Illinois Appellate Court ruled the IL Workers’ Compensation Act generally bars a worker from seeking a civil remedy from his employer for a work-related injury. The court further ruled Illinois case law has established civil immunity extends beyond a worker’s immediate employer to a party that has borne the costs of the workers’ compensation insurance coverage for the injured worker. In this case, the court noted, RAR2 created a legal obligation for Bulley to pay for workers’ compensation benefits of Bulley Concrete’s employees, including Munoz, and the obligation predated his injury.
The court noted Bulley satisfied its obligation by purchasing coverage through Arch, which allowed Munoz to collect benefits. The court, therefore, ruled Bulley was entitled to use the exclusive remedy provisions of the IL WC Act. The Appellate Court affirmed the lower court’s dismissal.
To read the court’s decision, click here.