When Moving Records and Practices, Know Your Legal Obligations
Say you're leaving a physician group practice and moving on to another practice: What are the current legal requirements for medical record retention, release of information, and storage? What are the legal requirements for notifying patients when departing a practice?
RETENTION, RELEASE, STORAGE
There is no standard federal law detailing the requirements and time frames for medical record retention, said Robert L. Coffield, a health care attorney at Flaherty, Sensabaugh & Bonasso, PLLC, in Charleston, WV. The retention laws vary by state. But that information may be available through the state medical society, medical board, their organization's compliance officer, or even the physician's medical liability carrier, according to Eric Nemmers, legislative counsel at the Iowa Medical Society. This is especially important when a physician' retires or dies because the duty to retain the records may remain.
In determining how long to keep records, physicians need to consider two factors: how long the law — both state and federal — requires them to be held; and how long after treatment a patient can bring a lawsuit (known as the statute of limitations for medical liability). Attorneys usually recommend that records regarding Medicare patients be retained at least 10 years, as CMS may pursue providers under the Federal False Claims Act for up to 10 years following payment of a claim, said Donald R. Moy, senior vice president and general counsel to the Medical Society of the State of New York in Westbury.
Physicians are often told to keep records for seven to 10 years after the last date of treatment, and for minors the requirements may be seven to 10 years from the age the minor reaches 18, said Coffield. Yet doctors should read their participation agreements with managed care plans, said Moy, because the agreement may require the physician to retain medical records for a longer period than required by law.
When it comes to the release of medical records, Nemmers said, “in general, you will want to look at the federal Health Insurance Portability and Accountability Act to determine your obligations, including how such releases must be authorized and the contents of a valid authorization form. This sort of information should already be on-hand in physician offices.”
When you move to a new practice, who owns the existing practice records? Review the current employment for that provision, said Moy.
“Most practices will, in the contract, state that the records belong to the practice and not the physician,” said Paul F. Danello, a partner in the health care practice Polsinelli Shughart PC, in Washington, DC. “If this is the case, it is a matter of negotiation, which may involve discussions about patients who have been seen by more than one physician and whether they are the patients of the exiting physician.”
While the hard copy of the record will usually be owned by the practice, information is owned by the patients, Danello said, so state law will always grant the patients the right to have their information and send it to whomever they chose. Doctors employed by a hospital, however, may have to adhere to a different set of regulations.
Ethics require that physicians notify their patients of their imminent departure from a group practice, Nemmers said. Danello said he generally recommends the doctor run the letter by the practice before sending it to patients.
However, some contracts prohibit doctors from contacting their patients, so in these cases, the practice should inform patients and include the name of the replacement physician, Danello said.
If a physician is moving locations, the Council on Ethical and Judicial Affairs of the AMA (Ethical Rule E-7.03) states that patients should be informed of the new address and offered the opportunity to have their records forwarded to the departing physician at the new practice. (See sidebar.)
Doctors moving practice locations should coordinate their departure with the state's medical board and the physician's medical liability carrier, and may hire an accountant and an attorney to ensure all business affairs are in order, Nemmers said. “All third-party payers may also need to be notified, so physicians should examine their reimbursement contracts to determine the specific notification requirements.” Physicians should avoid any breach of privacy or patient confidentiality in copying or taking patient records.
State laws vary regarding the requirements for physicians who want to terminate a relationship with a patient, Nemmers said. Iowa law, for example, requires physicians to give patients written notice that they are terminating the physician-patient relationship. They also must ensure that emergency medical care is available to a patient during the 30-day period following that notice.
Danello said that electronic medical records may simplify the transference process between physicians for patients, but added that there “needs to be an understanding about how the doctors can access records once they have left the practice, particularly if it's necessary to respond to malpractice claims.”
“Physicians are ultimately responsible to their colleagues, their payers, the federal government, state licensing boards, their liability insurer, and most importantly, their patients,” Nemmers concluded. “Physicians may easily delegate the responsibility for obtaining knowledge of rules and regulations on the office staff, but at the end of the day, the physicians are the ones who will be held accountable.”