Sometimes, electronic health record (EHR) systems fail to live up to their full potential as tools to assist with patient care. The same can be said for their promise to ease patient record storage, retention and retrieval.
Although electronic records are easier than paper to store and search, they still present an array of technical, legal and regulatory issues. Consultants and attorneys say that working through these issues proactively can alleviate records-related headaches, especially during practice transitions, such as a change in ownership or EHR vendor.
When developing a records retention policy, one of the first hurdles practices may encounter is that retention laws vary from state to state. Many state medical societies have thorough online guidelines explaining state laws about medical record ownership and retention, such as this one from the Michigan State Medical Society.
Other states may offer less guidance or have no clear law at all. “Here in North Carolina, we don’t have a specific records retention law for physician practices,” says Heather Cook Skelton, an attorney with Gardner Skelton, a Charlotte, N.C.-based law practice dedicated to helping healthcare providers and their medical practices. But, she says, practices can look to other sources, such as the guidelines within HIPAA, payer contracts and federal programs governed by the Centers for Medicare & Medicaid Services (CMS). Medicare Advantage contracts usually require the longest retention period. Often, it is 10 years after the end of the contract.
“It would be nice to have one rule that is consistent across all the regulators, payer contracts and state and federal government,” she says. “I also recommend that clients contact their malpractice carrier for record retention advice, because they are going to be the ones in a position to defend you in case of a lawsuit.” Attorney recommendations may depend on the statute of limitations on medical malpractice.
Another thorny issue to contend with is how to deal with pediatric records in EHRs. Again, state laws vary. The American Academy of Pediatrics (AAP) recommends that, at a minimum, pediatric records should be retained for 10 years or the age of majority plus the applicable state statute of limitations (time to file a lawsuit), whichever is longer. In some states, the statute of limitations does not start until the patient turns 18.
As a recent AAP publication describes, “adolescent privacy and/or confidentiality is a special case of the limited segmenting of functionality capabilities in EHRs that is compounded by variations in state laws regarding adolescent health records.” But practices may find it difficult to comply with state requirements and professional recommendations for adolescent privacy because of federal rules for disclosure. “For example, a portion of care may be protected by law as confidential for which the patient consents independently, but other aspects of care may not be protected, turning a simple routine visit into a potential series of confidentiality challenges,” the report notes.
The additional legal issues around medical partnership creation and dissolution can also impact patient records — and be a potential landmine. If one doctor is leaving a partnership after the partners had shared one EHR system, there is a high probability the records are comingled because the physicians have covered each other’s patients.
“There is no easy way to surgically remove only the records that apply to the one doctor,” says Jeffery Daigrepont, senior vice president of the Coker Group, an Atlanta-based consulting firm that works with physician practices and hospitals.
He says one practice manager he consults with is living through a “records nightmare” as two equal partners are dissolving their partnership. “Neither one wanted the other to have a full copy of the EHR database,” he explains. “They had comingled all their records. We told them they both owned the business, so they are both responsible for the recordkeeping. A judge got involved and said each was entitled to a full copy of the data even if it means each was getting a copy of the other physician’s records.”
James A. Ellzy, MD, a family physician in Washington, D.C., and a member of the board of directors of the American Academy of Family Physicians, recommends that when forming a practice agreement, decisions be made up front about whether patients belong to the practice or to the individual physician and how their records will be divided should the practice split up.
“If I am closing my practice, let’s say there is a requirement that those records be available in my state for five years,” Ellzy says. “I would contact my patients to inform them I am closing the practice and to see if there is somewhere they want me to forward their records. I would also explain that I am required to keep their records for five years. If I am in a practice of four physicians, I could have an agreement with the other three that they would become custodians of those records.”
Likewise, Cook Skelton says that if two practices are merging, how records are going to be handled should be contemplated as part of the merger talks. The discussion should include whose platform they are going to be using after the merger and how they are going to transition the records. If they are using two different EHR vendors, the data migration can be complex and costly, she adds.