Medical Protocol & Missouri Law Records produced by

Medical Protocol & Missouri Law Records produced by

Medical Records Protocol & Missouri Law * This information was prepared by the Missouri State Medical Association to assist you by answering some of the most common questions about medical records. The information contained in this guide has been gathered from Missouri law, MSMA s Physician s Guide to Law and Medicine, and American Medical Association policy. The Missouri State Medical Association cannot and does not provide legal advice. This guide is informational in nature and may not be relied upon for legal advice. Medical practices should contact their legal counsel for assistance. *updated September 2012 What goes into the medical record? Every time a patient is seen or consulted, an entry needs to be made in the patient s medical record. The record should include patient histories, examination results, test orders and results, diagnoses, patient complaints, medication history, reports of consultations and hospitalizations, notice of referrals, notes regarding patient conversations, and notes regarding the patient s demeanor and compliance. The idea is to describe patient care as completely and comprehensively as possible. Missouri state law indicates the following must be a part of the patient s medical record: Page 2

1. Patient identifying information, including name, address, birth date, and telephone number; 2. Date the patient was seen; 3. Current status of the patient, including reason for the visit; 4. Physical observation findings; 5. Assessment and clinical impression of diagnosis; 6. Plan for care and treatment, including medications; and, 7. Informed consent. Generally speaking, a physician should maintain patient records in a legible manner and with sufficient detail to explain why a specific course of treatment was undertaken, or why an alternate course was not undertaken. What are the protocols for releasing medical records? In most cases, only release medical records upon a written request of the patient, the patient s guardian, or the patient s legal representative. The request must be in writing and signed by the patient. The patient s legal representative could be a court-appointed administrator or guardian, or the patient s attorney. If the patient s attorney requests the records, he/she should also have a signed patient release. On occasion, the government may request your medical records. This commonly occurs in workers compensation cases when your patient is making a claim. In this event, the Workers Compensation commission may request your records without a written request from the patient. When this occurs, the records must be furnished to every party to the proceeding. This may include the employer and the employee. At other times, the state may ask for records for epidemiological studies or other statistical purposes. It is appropriate to release records in this instance as the state will preclude the release of any patientidentifying information. Page 3

HIPAA allows the release of medical records of a deceased patient to a coroner or medical examiner for purposes of determining a cause of death or identification, and also to a funeral director. Never ignore a subpoena for medical records, which is referred to as a subpoena duces tecum. This type of subpoena requires the custodian of certain documents to produce the documents in court or at a deposition. Always seek advice from your liability carrier if you receive a subpoena. Subpoena duces tecum often accompany an affidavit that requires a notarized oath by the custodian that these are complete, true, and accurate records. Although the affidavit may be a pain, it beats having to testify as to the accuracy of your medical records in court or at a deposition. What parts of the medical record should I release? It really depends upon who is requesting the records and whether they are asking for a specific set of records, or the entire patient s file. The patient, as long as it is requested in writing, can receive a copy of his/her entire record, or any portion thereof. However, if the request centers on a specific episode of treatment, then only those records should be released. Missouri state law indicates, such right shall be limited to access consistent with the patient s condition and sound therapeutic treatment as determined by the provider. So, unless the patient requests the entire record, only release that portion which is related to the provided care in question. Usually, a patient s medical record in your office also contains records generated by another physician or provider. These records are part of the patient s record, and they should be released when properly requested, even though they were not generated by your office. This includes records from a prior-treating physician, test results from a referral, or records from a hospital stay. This not only protects you from further inquiry, but also prevents future harm to the patient by protecting his/her welfare. Page 4

Of course, some records should not be released, especially if their release would result in harm to the patient. Many of these instances are specialty centered psychiatric records, for example. Others are condition-specific such as HIV testing. These types of records are afforded the highest possible protections. How much should be charged for copies? The Department of Health and Senior Services adjusts the rates for copying medical records every February. Please contact them for the most recent update at 573-751-6400 or check MSMA s website at www.msma.org/practicemanagementupdates. HIPAA also regulates how much a provider can charge a patient for their medical records. In that case, it bans any type of handling charge. State law allows an additional charge of no more than $20 when the physician is charged by an outside storage service for the retrieval of records that are stored outside the physician s office. Furthermore, when the office stores records in an electronic format and also provides copies of the records in an electronic format (CD, DVD, etc.), it can charge no more than $100 or the rate currently charged for paper copies. There are no specific limits on the charge for specialized copies or copies which cannot be routinely copied on a standard photocopy machine, but the law does require the charge to be reasonable. The above limits apply to records which are being released to the patient, an attorney, an insurer, or another health care provider. How long should I keep medical records? Missouri law requires, Patient records remaining under the care, custody and control of the licensee shall be maintained by the licensee for a minimum of seven years from the date of when the last professional service was provided. That seems pretty cut and dry. In some cases, however, seven years may not be long enough. For example, if the patient is a minor, you should plan on keeping the records at least until they reach nineteen years of age, or seven years since you have seen the patient. Page 5

Page 6 If the patient is incompetent, you should keep those records as long as you practice. If the patient has died, you will want to keep those records for at least eight years, in case they are requested by the estate of the deceased or an entity acting on their behalf. Regardless, MSMA encourages you to retain your patient records as long as you maintain your practice. This is the best practice for two reasons. First, the records will assist in patient treatment if the patient returns to your office after an extended break, or if they are requested by another provider with a similar diagnosis of the patient. Second, the records may also be needed to help defend against a malpractice action. Medical records can be used to show a pattern of care among similar patients. So even if you haven t seen a patient in a number of years, those records could be very valuable. What about electronic medical records? EMRs are the wave of the future. However, the move to EMRs is meant to be voluntary, so there is no need to move away from paper records if you so choose. Since the federal government has been moving towards a paperless health care system, there are some advantages to EMRs. First, it is certainly less voluminous than paper records. Although there will be a time when your office has both paper records and EMRs, the situation should be a temporary one. Second, electronic billing usually means receiving reimbursements much quicker than paper billing. There are other advantages to EMRs. They limit the exposure of sensitive patient information among the office staff. They can also be backed-up and stored outside the office, which would come in handy in the case of an emergency.

HIPAA requires a certain amount of security regarding EMRs. When the time comes to switch from paper, be sure to consult your insurance liability carrier or another trusted source because some HIPAA consultants may have inaccurate information. What should be done with medical records upon resignation/retirement? Leaving a practice does not mean your liabilities cease regarding your medical records. Proper steps must be taken to ensure you are protected. Usually, records should be left at the practice, and a subsequent treating physician will continue the record. The AMA policy reads, A patient s records may be necessary to the patient in the future not only for medical care, but also for employment, insurance, litigation, or other reasons. Records which may be of value to a patient and which are not forwarded to a new physician should be retained, either by the treating physician, another physician, or such other person lawfully permitted to act as custodian to the records. So, first notify the patient of your resignation or retirement. If they choose a new physician at a new practice, forward their records on to that doctor. If they remain at your practice, they should be retained. How should medical records be destroyed? In order to protect patient confidentiality, it is important that the record be completely destroyed. MSMA recommends destroying patient medical records by shredding or by fire. Do not simply toss them out in the trash. In many areas, professional disposal services can properly destroy records for you, freeing you up to create new records. Page 7

About MSMA s Legal Affairs Division The practice of medicine is highly regulated. If you have legal questions, turn to the MSMA Legal Affairs department for answers. Whether it concerns medical records, collaborative practice agreements, or how recent legal decisions may affect your practice, your MSMA legal staff can provide the pertinent information you need. Physician s Guide to Law & Medicine Available exclusively online to members only, at www.msma.org/ guidetolaw and continuously updated, MSMA offers the Physician s Guide to Law and Medicine to assist members in understanding the laws that affect the practice of medicine. Representation to Regulatory & Government Agencies MSMA members enjoy powerful representation on legislative issues and before regulatory bodies such as the Missouri Board of Healing Arts, Medicare and Medicaid Services, Missouri Department of Insurance, Missouri s Quality Improvement Organizations, Third- Party Payer Services, and many more. Many physicians volunteer their time to participate in consortiums which shape public health initiatives on obesity, cancer, tobacco, and health literacy. Contact Jeff Howell, JD, MSMA s Director of Governmental Relations & General Counsel, for more information about medical-legal consultation services at 800-869-6762 or email jhowell@msma.org. Visit www.msma.org/advocacy. 113 Madison Street P.O. Box 1028 Jefferson City, MO 65102 Toll-Free: 800-869-6762 800-869-6762 Fax: 573-636-8552 www.msma.org Page 8