Patient and Medical Records Responsibility

Medical Record Retention

In any transition from a practice, the provider needs to identify how care to patients and custodianship of their medical records will be addressed. Failing to address the ongoing care of patients can lead to patient abandonment complaints, while failing to properly maintain medical records can lead to a number of issues, such as HIPAA violations, malpractice issues and medical board complaints of failing to properly maintain medical records. 

For providers leaving an employed or independent contractor position, these issues should be included in the contract between the provider and the practice. The practice is often named the custodian of the patient medical records and, as such, can continue care for the patient. In these cases, the provider does not have to worry about patient abandonment or maintaining medical records. In the rare instant that the contract does not address these issues–or that there is no contract–the provider should look to state regulations regarding the custodian of medical records. Determining the custodian of medical records determines who has the responsibility to maintain those medical records. Some state require that custodians be qualified by specific licensing.

In general, medical records need to be maintained from seven to ten years from last use. Each state has their own requirements for how long medical records must be retained, which may be different for pediatric patients. There are some additional considerations for any employee medical records to be compliant with OSHA, which requires that certain medical records be retained for thirty years.¹  Once medical records no longer have to be maintained, they can be destroyed in a way that protects the protected health information. A log should be created to show the patient name and date of destruction. 

While providers may be able to destroy medical records that are outside of the retention period, consideration should be given to maintaining medical records beyond this date. Patients may not realize that their medical records do not have to be permanently retained. Many government agencies have no statute of limitations on investigations. Five years seems like a long time, but if a complaint is filed four years after the last date of service, the government agency investigates for eighteen months and then identifies that the provider has relevant medical records, it is possible that an investigation could request medical records that are outside of the retention period. 

Patient Care Issues

Once a patient established care with a provider, (and, by extension, a practice), a duty to care is created. This duty extends beyond simply maintaining the patient’s medical record. The provider/patient relationship places some very basic obligations on the provider, including how the patient may access their medical record and the provider’s availability. If a provider is unable to provide continuing care for patients, the provider can avoid patient abandonment issues by 1) Making patients aware of this change and 2) Making contingency arrangements.

The most common patient care issue is dismissing patients, which often requires notifying patients that they are being dismissed from the care of the provider and/or practice, offers a period of time when on-going patient issues may be addressed and informs the patient where they can find other providers to continue care. Each state has its own regulations regarding dismissing patients aimed at protecting the patient from being “abandoned” by the provider.

Patient care issues are also relevant in other situations. When providers leave a practice, the practice may inform patients that the provider will no longer be available at the practice after a certain date and assure patients that they can see other providers at the practice. If the practice doesn’t have capacity to see these patients, they should provide a contingency to patients, such as, “You may follow Provider X at their new location” or “Provider Y has agreed to see patients of Provider X who our practice cannot accommodate.”

When a provider retires from a practice, the practice typically retains the medical records. For practice owners, they need to make accommodations for both maintaining medical records and processing medical records request. Two options available are to hire a document management company for this role or to sell or transfer medical records to another qualified provider. As some states require that the custodian of medical records have certain licensing, a provider in these states could not, for instance, transfer their medical records to a lay person.

Articles on Medical Record Retention

1. “Medical Records Retention and HIPAA,” Max Freedman. Business News Daily, June 29, 2022. (CLICK HERE)