How long do I have to keep patient records and do I have to maintain the entire record?

Question:

Dear Jennifer:

1.  I am moving my office. I have paper charts.  I would like to keep as few as possible.  What is the least length of time I need to keep charts? Is it six years or seven years? I have heard both.

 2.  I am joining a group that does not have EMR, but is a paperless office. I need to scan in all my charts.  If I have been seeing a patient for a long time, like 10-15 years, can I get rid of everything greater than six-seven years (or whatever the amount of years)? Or do I have to keep the entire record if I'm still seeing her now?

 Thank you.

S

 Answer provided by Jennifer Kirschenbaum, Esq:

Good questions! 

1. In New York, and many other jurisdictions, the rule is a record must be maintained for at least six years and until one year after a minor patient reaches the age of 21 years.

Sources:

TITLE 8. EDUCATION DEPARTMENT

CHAPTER I. RULES OF THE BOARD OF REGENTS

PART 29. UNPROFESSIONAL CONDUCT

8 NYCRR § 29.2 (2011)

(3) Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient. Unless otherwise provided by law, all patient records must be retained for at least six years. Obstetrical records and records of minor patients must be retained for at least six years, and until one year after the minor patient reaches the age of 21 years.

What about HIPAA?

Does the HIPAA Privacy Rule require covered entities to keep patients’ medical records for any period of time?

No, the HIPAA Privacy Rule does not include medical record retention requirements. Rather, state laws generally govern how long medical records are to be retained. However, the HIPAA Privacy Rule does require that covered entities apply appropriate administrative, technical, and physical safeguards to protect the privacy of medical records and other protected health information (PHI) for whatever period such information is maintained by a covered entity, including through disposal. See 45 CFR 164.530(c).

Click here for more information on the HHS.gov site.    

2. There is no definitive answer here other than you only have a requirement to keep a record for the time periods set forth above if you practice in New York. If you practice in another state, check with your state.

My advice: 

If you still have an active patient you have seen in the last three years, and records within the six-year time frame, I recommend you scan and maintain the ENTIRE RECORD.  

You never know what will happen or what claims may potentially be made against you and having the record may be your best defence.  I had a client with a patient with hepatitis claim an illnesses spreading 20 years and a complaint was made to the Office of Professional Medical Conduct by the family upon the patient’s demise.  Without the records, the client would have been significantly disadvantaged.  Since we had the records, we were able to defend proper standard of care and easily walk away unscathed by licensure.

Also of note, and addressed in a prior newsletter, oftentimes in a medical malpractice action, insurance carriers will require original records. This issue has not been revisited recently and should be updated with the availability of scanning records. So, there is no clear cut ruling on this, and my answer is it’s a business decision about when you decide to scan and trash. Also, I would recommend following up with your malpractice carrier to see whether they have additional maintenance suggestions/requirements..