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Australian SLPs: do you store progress notes in a cloud-based practice management system?

9 July 2018 By David Kinnane Leave a Comment

Reputable cloud-based practice management systems, like Cliniko and HealthKit, are becoming more sophisticated. Many Australian SLPs in private practice are using them to store client progress notes.

I’m all for using systems to save time and money. And it’s hard to ignore the (as yet, unrealised) dream of a paperless clinic. But if you are using or planning to use a practice management system to store progress notes online, it’s best to be aware of some of the legal risks, if only so you can think about how best to manage them.

First, it’s worth recapping some key laws that regulate speech pathologists’ progress notes in Australia.

1. Do we need to keep progress notes?

Yes.

In most Australian States, there is a legal requirement to take progress notes. For example, under the NSW Code of Conduct for Unregistered Health Practitioners, we “must maintain accurate, legible and contemporaneous clinical records for each client consultation”. For States and Territories who have not yet implemented the National Code, there is still an ethical requirement (see clause 3.3.6 of the Speech Pathology Australia Code of Ethics).

2. Who owns progress notes?

Generally, as a matter of law, principal speech pathologists own their file notes. Sole practitioners have full ownership of their notes. Employers own the progress notes of their employed speech pathologists. In most cases, the hirer/principal owns progress notes relating to clients served by independent contractors (although this is a bit of grey area and should be documented in the contract between the hirer and the independent contractor).

In group practices, and practices with a high turnover off staff, the analysis of who owns a specific progress note (and who owes legal obligations to retain and protect it) can get complicated quickly.

3. Who, apart from the speech pathologist, has access rights to progress notes?

Clients have statutory access rights to progress, including under the Privacy Act 1988 (Cth) (“Privacy Act”).

Progress notes can also be subpoenaed by a party to litigation, e.g. in Family Court custody disputes or where there is an allegation of professional negligence.

4. For how long do speech pathologists need to keep progress notes?

This varies, State by State. But it’s longer than many people think. In NSW, the ACT, and Victoria, for example, you are required to keep progress notes until a child client turns 25, and, for adults, for seven years from the date of the last service.

You may also need to keep progress notes in some States if you anticipate litigation.

5. What are speech pathologists’ key privacy obligations with respect to progress notes?

For the purposes of the Privacy Act:

speech pathologists in private practice – big or small – are “health service providers”; and
our file notes and reports contain “health information”, which is one of the most sensitive categories of personal information.

This means that, compared to non-health related small businesses, we need to take extra steps to protect our clients’ privacy.

First, we need consent to collect health information. We also need to tell clients how we handle their information, including how we will store and protect it. The most common way of doing this is through a privacy policy and a written notice at or just after intake.

Speech pathologists must take reasonable steps to protect personal information from misuse, interference or loss; and from unauthorised access, modification or disclosure. If we are sending personal information offshore, we must take reasonable steps to ensure no privacy breaches will occur.

Since 22 February 2018, the Privacy Act has imposed a mandatory breach notification requirement on health providers for some data breaches, including breaches that health providers believe are likely to result in serious harm to patients. (You can read more about this here.)

6. Progress notes stored in practice management systems

The laws above apply regardless of how you write progress notes or where you store them. Storing progress notes in a cloud-based practice management system raises a few additional issues speech pathologists need to think about.

To help make the discussion as practical as possible, I looked at the Cliniko and HealthKit Terms of Use as of 9 July 2018. I don’t currently use either service in my practice, but I know both are reputable services used by many speech pathologists.

(a) Who is responsible for complying with Australian laws that regulate progress notes stored on practice management systems?

The speech pathologist.

Health service providers, including speech pathologists, cannot delegate their legal obligations to service providers. Most practice management system companies make this very clear in their terms of use. For example:

Cliniko’s terms state that the speech pathologist using the service “must comply with all applicable rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights”; and
HealthKit’s terms state that a speech pathologist using the service warrants that they “manage Personal Information in accordance with Australian Privacy Principles….”.

(b) Does the speech pathologist still own their notes?

Probably, though it’s best to check before using a practice management system to store progress notes. For example, Cliniko expressly claims no intellectual property rights over the data or other material speech pathologists provide. HealthKit’s Terms of Use appear to be silent on this point.

(c) Do you need client consent to store progress notes in a cloud-based practice management system?

In our view, yes. And, in their terms, some providers appear to agree with us.

For example, HealthKit’s terms state that speech pathologists using the service must warrant (promise) that they “have disclosed to and obtained the consent of patients that their personal and non-personal data, including health records and payments information, are stored on [HealthKit]…[and] further warrant that [they] have disclosed and obtained patients’ consent for the possible uses of the information stored on this site”. HealthKit’s terms go on to state that speech pathologists using the site warrant that, “where in your reasonable belief the patient is physically or mentally incapable of consent, you have disclosed and obtained the consent of the patient’s guardian, next of kin or other relevant party”.

(d) What happens if the practice management system loses or deletes your progress notes, goes down, if your service is suspended or terminated, if the provider goes out of business, or if the service is otherwise discontinued?

The speech pathologist remains on the hook for the privacy, health record retention and other obligations in respect of progress notes. Even if the management system deletes or otherwise loses your data.

Most practice management system companies are very clear on this. For example:

the Cliniko terms provide that use of their service is at the speech pathologist’s sole risk and that the speech pathologist is solely responsible for any damage resulting from use of their service; and that the entire risk arising out of use, security or performance of their service remains with the speech pathologist. They also make it clear that if there is loss or damage to your data, your only remedy will be for the company to “use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data” maintained by the company. They also make it clear that they do not promise to provide an uninterrupted or error free service.
the HealthKit terms provide that the service is provided on an “as is” and “as available” basis and that they may (among other things) “discontinue this web site and its services or delete the data you provide, whether temporarily or permanently”.

(e) With whom can the practice management system company share progress notes containing health information?

This varies from company to company. For example:

the HealthKit terms state that “sometimes we may transfer information to persons outside Australia (e.g. a contractor located in another country who provides us with services). By giving us your personal information, you consent to such disclosures”. They also state that they can share information with Medicare, the Department of Veterans’ Affairs and “our SMS provider and other third parties that we contract or with whom we integrate for the for the purpose of identifying you”.
the Cliniko terms state that users consent to the company “transferring your data to third party IT providers, including our website host and back-up service provider, outside Australia”. Cliniko’s Privacy Policy states that their use of data that is personal information relating to third parties (including clients) is limited to providing support and technical assistance.

In practice, this means you need to look carefully at the specific provider’s terms of use and privacy policy. In particular, you need to check that the service provider does not claim the right to use your clients’ data for direct marketing, or to sell it to third parties for commercial purposes.

(f) What happens if the practice management provider suffers a data breach involving your progress notes?

The speech pathologist is responsible to their clients and the regulator for compliance with the Privacy Act, including the mandatory notification requirements for serious breaches. To do this – obviously – you need to know that a breach has occurred and speech pathologists should check that their service provider will notify them in a timely fashion that a data breach has occurred. Cliniko, for example, states in their Privacy Policy that they will notify users within 72 hours of discovering a breach.

Bottom line

Storing progress notes on a cloud-based practice management system is an attractive proposition for many speech pathologists. Storing progress notes in the cloud raises compliance issues, including with respect to client privacy and the retention of health records. Regardless of how speech pathologists write and store their progress notes, they are responsible for complying with Australian laws that apply to the creation, storage, use and disclosure of health records.

Disclaimer: The information in this article is for general information purposes only and is not legal advice. This article is current as at the date of its publication. This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. It cannot be relied on by any person for any purpose. If this article raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation.

Related articles:

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Speech pathologists, therapy assistants, digital platforms, and the gig economy: some ethics and compliance issues

3 July 2018 By David Kinnane Leave a Comment

Over the last five years or so, there’s been a lot of chatter about how speech pathologists can or should outsource “non-core services” to others – e.g. to therapy assistants or software service providers – to help more clients achieve their goals for less money.

It’s going to happen, whether we like it or not.

Outsourcing is confronting. But it’s nothing new for many professions.

For example, while working for law firms and banks in the early 2000s, I watched the rise and rise of Legal Process Outsourcing (LPO). LPO is now a very big business, where law firms and companies in high cost locations like the US and the UK subcontract some of their client/legal work to other companies in the same country or (more usually) in low cost jurisdictions like India, Chile, the Philippines and Sri Lanka.

In the early days, much of the work outsourced was very low level grunt and churn work. But, as companies and clients got used to the benefits of LPO, and as the LPO providers got more experience and skills, many LPO providers started offering higher value (and higher fee) services that, for some work, threatened to replace the need for in-house lawyers and external lawyers in high cost countries altogether.

LPO is only one kind of a much larger industry called Knowledge Process Outsourcing (KPO), which can occur across borders or within them. To different degrees, KPO has affected a whole host of professions in high cost countries, including tax and accounting, marketing, medical and life science research (including clinical trials), data analysis, business intelligence, engineering and finance.

Is speech pathology work vulnerable to outsourcing?

Yes. At least some of it is.

We tend to think of speech pathology as “outsourcing resistant”. The theory goes that we offer a personal service that requires a qualified speech pathologist to interview, assess, plan, then deliver all aspects of therapy to clients in a room, face-to-face.

But is all our work outsourcing-proof?

In practice, low profit margins are probably the biggest disincentive to the large-scale KPO of speech pathology. But, over the last few years:

many practices have their resources and even client data “in the cloud”, often using a range of low cost subscription-based platforms to do so;
many small practices have started to use virtual assistants and automated (or semi-automated) platforms to handle processes like client intake and bookings;
clients are increasingly looking to access basic information about speech pathology needs via YouTube, blogs, social media, e-courses, or e-books;
many of us are assessing and treating clients via telehealth using low cost or free services like Zoom and Skype;
aided by mobile payment and other cloud-based systems, many of us are delivering mobile services without bricks and mortar clinics;
aided by increased competition in some parts of the market, clients and other service “payers” (like the NDIA) are increasingly expecting that “commoditised”, low-value services will be provided for free or at a very low price that is not worth professional time;
more and more SLPs are opting for (or being forced into) independent contracting work. Some – particularly Millennials – are seeking flexibility and work-life balance. Some are doing it because they want to be their own boss. Others are doing it because they can’t find stable employment;
digital platforms like HireUp have developed to match clients with service providers who can help them (including speech pathologists);
health review sites have sprung up to give consumers more transparency and information about our strengths, limitations, services (and waiting lists);
the evidence base has established that some conditions, like childhood apraxia of speech or hypokinetic dysarthria, require more frequent and/or intensive treatment than we’ve traditionally been able to provide one-to-one; and
more universities have started speech pathology programs and more adult colleges have established speech pathology assistant courses, increasing the size of the para-professional workforce with at least some knowledge of speech pathology services.

Some key ethics and compliance issues to consider when outsourcing work to a service provider or assistant

Fundamentally, what separates qualified speech pathologists from assistants like students or therapy assistants is not simply knowledge, but the wisdom about how to apply it appropriately in the best interests of our clients. Being a professional mandates that, in any outsourcing arrangement – big or small – we think carefully through issues like:

client confidentiality and the privacy of health records;
client care and costs information;
informed client consent;
“reserved speech pathology activities” that are too important to be carried out by assistants and service providers who are not speech pathologists; and
contractual arrangements and indemnity and other insurances to address foreseeable risks/events like data breaches and negligence.

None of this is easy – in the legal sector, lawyers have been struggling with these issues for well over a decade. And, to complicate matters, “speech pathologist” is not a protected title in some countries (like Australia), meaning that it’s sometimes very difficult to establish what “reserved speech pathology activities” might mean in a given context, outside of the rules regulating rebates and insurance payments.

What matters most is – of course – the best interests of our clients; and making sure we satisfy our legal and ethical duties to clients, the profession, and to the general public.

In outsourcing professional work to others, we cannot delegate our ethical and legal obligations to clients or the profession.

Disclaimer: This article contains our opinion on some legal and ethical matters in the field of KPO of speech pathology services. Nothing in this article constitutes legal advice.

Related articles:

Principal background references:

Ross, M. (2011). Legal Process Outsourcing: Ethics and Compliance. Legal Information Management, 11, 97-101.

Shuk-Ching Poon, T. (2018). Independent Workers: Growth Trends, Categories, and Employee Relations Implications in the Emerging Gig Economy, Employment Responsibility Rights Journal, (published online, 5 June 2018).

Noronha, E., D’Cruz, P., Kuruvilla, S. (2016). Globalisation of Commodification: Legal Process Outsourcing and Indian Lawyers. Journal of Contemporary Asia, 46(4), 610-640.

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SLP Three-Piece Thursday 7: on productivity, the death of expertise, and more sleep!

14 December 2017 By David Kinnane Leave a Comment

On productivity: Being productive isn’t the same thing as doing more things or being busy. It’s doing the right things. Time, energy and attention are not unlimited: you should be stingy with each. Start with a purpose: three things you want to achieve each month, week and day. Reward yourself for finishing tough tasks. Work less than 50 hours a week. Write down every outstanding task you can think of to free-up brain power. More: check out Chris Bailey.
On the death of expertise: Information wants to be free and is almost infinite these days. The days of making a good living by using ‘secret’ information are ending. But there are some problems. There is too much conflicting information out there on many topics. Many people – especially vulnerable people – have insufficient tools to sift facts from lies; evidence from fiction. Having less skill at a task can make you less likely to recognise your own incompetence. People pay more attention to information that supports what we think is true (confirmation bias). These factors create blind spots: we can miss the obvious. There’s never been a better time to add value by fact-checking and educating people on how to process information. But experts are frequently wrong. For more, read Tom Nichols’ book The Death of Expertise: The Campaign Against Established Knowledge and Why it Matters.
On sleep: Too many of us are exhausted! Sleep more. Rid your bedroom of electronic devices and invest in black-out blinds. Keep a sleep schedule. Set an alarm for bedtime (not just wake-up time). Wake up at the same time every day (even weekends). Nap more during the day. For more, check out Chris Winter’s The Sleep Solution: Why Your Sleep is Broken and How to Fix It.

SLP Three-Piece Thursday 6: on being original, managing your anger, and making it big

7 December 2017 By David Kinnane Leave a Comment

Be original. Both the quantity and quality of your new ideas are important. You never know which one will be a hit. Sometimes, a good way to generate ideas is to procrastinate. Leaving things to the last minute forces you to improvise and stops tasks expanding to fill the time available. To test your ideas, try to convince people why an idea is a bad one – talk up the shortcomings and see if you can convince yourself. To sell a radical idea: (a) repeated exposure is required, so speak up and repeat yourself; and (b) tie it to something that already exists. Avoid group think and echo chambers – in the real world, and online. Surround yourself with critical thinkers who will tell you the truth. Surround yourself with people who are dissatisfied with the way things are. For more, watch Adam Grant at TED2016 – The Surprising Habits of Original Thinkers.
Manage your anger. Rage can be healthy, e.g. if you are trying to work up the courage to make a big change. But it can also damage your relationships and health. Know yourself: know the signs you are losing your temper (e.g. blushing, sweating, shallow breathing), and take control before boil-over point. Send yourself to “Time Out”. Schedule brooding time. Focus on the positive. Recognise that many set backs are temporary and solvable. Meditate. Exercise. Sleep. Recast problems as challenges. Focus on what you can control; on solutions or mitigants. Make lists of things you are grateful for in life. Tweak habits to reduce things that trigger stress and anger. For more, see Charles Elliott and Laura Smith’s “Anger Management for Dummies“.
Make it big. Fame and fortune aren’t always awarded on merit. Being in the right place at the right time can make a big difference to outcomes. Clients are attracted to objects, products and services that are novel, but familiar (recognisable). People are attracted to repetition with slight variations, e.g. in music (verse-verse-chorus-verse-chorus-bridge). The best marketing can’t help a poor service. Being too popular can trigger a backlash, e.g. when you scale and lose exclusivity. People look to others for validation, which is why Charles Douglas pioneered the use of laugh tracks into TV comedies. 90% of tweets don’t get shared; and only 1% get shared more than 7 times. Popularity can be boosted by exposure, the proper balance of familiarity and novelty, and repetition but, in the end, chance plays an important role. You have to be in it to win it though! For more, watch Derek Thompson – Hit Makers: The Science of Popularity in an Age of Distraction.

The value of speech – 14 hot tips, from 107 1/2 years ago

16 November 2017 By David Kinnane Leave a Comment

Back when I was a pompous lawyer – with lots of books but no time to read – my wife bought me an embossed, original, 9-volume set comprising the “International University Course”. Exactly the kind of thing that looks good on a shelf, but no-one ever reads.

Until now.

With (slightly) more time on my hands as a (slightly) less pompous speech pathologist, I’ve cracked open volume 1. And, ignoring the regular blasts of British Imperial propaganda, several gold nuggets glint inside, including an address by Lord Bryce to the State University of Iowa back in 1910 called “The Value of Speech”.

Lord Bryce had 14 tips for speakers. Most of them are spot on for 2017. Paraphrased for a post-Colonial, ‘politically modern’ readership, here they stand for your inspection:

Always have something to say.
Always know what you mean to say.
Always arrange your remarks in some sort of order.
At all hazards, be clear. Make your meaning plain to your audience.
In controversial speaking (e.g. in a lawsuit or when arguing with the government), always think of what your opponent will say and anticipate his/her answers. Meet your opponent’s jests with earnest, and earnest with jest.
Know your audience and be prepared to adapt/discard your prepared speech to suit them.
Never speak down to your audience, “whatever you may think of their intellectual attainments”.
Be sparing of literary ornament.
When you tell a story, plan it out, make it relevant, and don’t overdo the humour, even if you’re good at it.
Never, if you can help it, be dull.
Remember, delivery matters. “Articulation, modulation and expression may all be cultivated”. Make sure people can hear you. Do not shout. Don’t wear out your voice. Vary your pitch. Speak slowly.
Never read from a script if you can help it. The fewer notes the better, unless you’ve got a terrible memory.
Always memorise the last two of three sentences of your speech.
Never weary your audience. If they are tired before you start, cut your talk short, unless your speech is good enough to freshen them up.

True to his tips, Lord Bryce finished his address with panache. Paraphrased and em-bulleted for your modern attention span and disposition:

Remember the purpose of your speech. Are you trying to persuade or entertain (or both)?
You will sometimes fail – no-one is always at his/her best.
Don’t give up. If you stuff up a speech, try to fix it next time!

Source: Lord Bryce (1910). The Value of Speech. Address to the State University of Iowa, April 1910, in Volume 1, International University Reading Course, International University Society, London.

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