The Legal Health Record Challenge, Part 1
The adaptation to EHRs has raised lots of questions due to lack of agreement on definitions and processes.
Thank you to Advance Magazine for permission to use this article

LESLIE: The legal health record is certainly garnering a lot of attention among the American Health Information Management Association's (AHIMA)thought leaders. It's been the subject of three AHIMA work groups, practice briefs, several articles and round table discussions.

PATTY: You may also recall that when we asked the alumni of AHIMA's program, "Renaissance for the 21st Century: Leading the Change to e-HIM®", what EHR issue is most challenging, they replied the legal health record. In addition, AHIMA's 2006 House of Delegates passed a resolution related to the legal health record acknowledging the need for defining one set of health information that meets the legal and business needs of the organization and complies with state and federal laws and regulations; that the location (paper or electronic) of information that comprises the legal health record be documented; and that organizations implementing EHRs develop strategies minimizing risks associated with records in a hybrid state and take steps to ensure that the functionality of their EHR system supports the legal health record.

LESLIE: With all the attention to the issue, which is larger and more complex than anyone realized just a few years ago, I would like to find a way to get my arms around it.

PATTY: I know you have been concerned about this issue. That's why I asked Gwen Hughes, director of HIM consulting at Care Communications Inc. and Michelle Dougherty, director of practice leadership at AHIMA, to join us in this month's dialogue.

GWEN: Michelle, can you provide us with some background and frame the issues related to the legal health record for us?

MICHELLE: Legal health record discussions are occurring across the country as we adapt to EHRs and the maintenance and release of electronic records. There is quite a bit of confusion because there isn't agreement yet on legal health record definitions and processes. Several legal record challenges have surfaced during the work of AHIMA's e-HIM® work group.

LESLIE: Do you have examples of the challenges?

MICHELLE: There are a few examples. For starters, it is difficult deciding what to disclose in response to a request for a patient's health record when the record is no longer a paper record, but instead data is maintained in a database or repository. Another challenge is that an organization's EHR system can lack the functionality to replicate standard business practices for maintaining a legally sound health record (for example, properly amending and correcting health records). In that situation, it's hard to know how to handle the questions one might be asked when presenting a record in court. There is also discussion around best practices for disclosure. Should it include printing a record, providing a CD or allowing the requestor to view a record online, for example?

GWEN: Were there themes that emerged from the stories?

MICHELLE: Yes, as discussions like these progressed, it seemed the issues began to fall into three major categories:

# Defining the legal health record and identifying data mining issues—how will an organization get data out of the database or repository to officially represent the stay/encounter?
# EHR system functionality—what are the business rules for an EHR and how will the organization's EHR support those rules?
# Handling the legal process and related disclosures—how will the record be used for official purposes? Will a record that is disclosed be printed, provided on a CD or will the requestor be asked to look at the material online?

LESLIE: As we work through these issues, is there anything we can learn from other industries?

MICHELLE: Yes, we've learned that even though the record medium has changed from paper to electronic, there's still a need for a record custodian. IT will handle the technical infrastructure, but the HIM profession is needed to manage health record content, retention, auditing and destruction even when the information is contained in a nursing module, for example. The HIM role doesn't go away with an EHR, but instead will be even more important.

GWEN: That's an exciting observation and it suggests the importance of clearly defining what it means to be a health information manager in an electronic environment.

LESLIE: We have often talked about the important role of HIM leaders creating an e-HIM migration plan, working with others to clearly define their personal, department and staff roles during and after the migration to an EHR, and to develop and implement an action plan to realize that vision. This conversation takes us beyond that plan to talking about the responsibility of HIM professionals to develop e-HIM practice standards.

PATTY: This conversation also underlines the importance of HIM involvement in the EHR selection process.

MICHELLE: HIM professionals can be perceived as obstructionists when they call attention to legal medical record-related issues in their organizations.

LESLIE: This suggests that we really have our work cut out for us in the important change leadership role of creating urgency that will mobilize the EHR steering committee and its subcommittees.

GWEN: I think a governing board member, senior-level leaders and/or the EHR selection committee would appreciate the input of the HIM professional who provides them with the functional requirements needed to assure the discoverability and admissibility of a patient's health record in court and the test scripts or scenarios needed to accurately measure the performance of EHR products being considered.

LESLIE: In the long run, defining the legal health record for e-discoverability will help health care organizations avoid millions in unnecessary settlements should the functionality of the EHR fail to meet the "business record rule" required for admitting the patient's record in a court of law.

MICHELLE: As a matter of fact, Reed Gelzer wrote an interesting article about developing testing vignettes in the May 2006 issue of the Journal of AHIMA. Your readers may want to look at it.

GWEN: You've provided us with a framework for further exploring and engaging in the challenges related to the legal health record. What steps do you recommend our readers take within their organization to engage leadership in the legal health record discussion?

MICHELLE: I think there are three particularly useful steps for HIM professionals:
# Provide a copy of the AHIMA Practice Briefs on legal record issues to your organization and IT leadership.
# Assist selection committees for clinical applications (e.g., nursing, emergency department, outpatient) to check for functionality that supports a legal record.
# Become familiar with the e-discovery rule and engage IT and legal in preparing your organization's response plan.

GWEN: These are very helpful suggestions. There are a number of resources related to the legal health record that help inform HIM professionals about legal health record issues and can serve as a springboard for discussion and policy making. (For a complete list of legal medical record resources, see below.)

PATTY: Thank you Gwen and Michelle for framing the legal health record issues for us and pointing us and our readers in the right direction. Leslie, what's up next month?

LESLIE: I think it would be interesting to talk to Barbara Fuller, past president of AHIMA, who works for the National Institute of Health Human Genome Project on potential legal health record issues related to DNA information.

PATTY: That sounds like a great idea. Privacy issues around DNA are heating up.

LESLIE: I look forward to exploring the three categories of legal health record issues (data mining, system functionality and disclosure) in more detail, and interviewing Barbara Fuller in upcoming issues.

Leslie Ann Fox is chief executive officer and Patty Thierry Sheridan is president of Care Communications Inc., a national HIM consulting and staffing company headquartered in Chicago. They invite readers to send their thoughts and opinions on this column to lfox@care-communications.com or pthierry@care-communications.com .