OR WAIT null SECS
Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
If you plan to close your practice, you must determine how to handle your medical records and who you'll select as a custodian.
In my last blog, I discussed the steps that a physician should take when he or she decides to retire from the practice of medicine. This process includes notifying patients and other third parties regarding the closing of the practice and letting patients know how they can obtain copies of their medical records.
A major issue that arises when a practice is closed, and not sold or transferred to a new physician, is how to handle the medical records of patients. What should a retiring physician do with medical records to meet legal and ethical obligations, without having to be permanently responsive to patient demands?
When assessing a retiring physician’s medical record situation, I typically recommend the following:
1. Assess the number of records that the practice has in total.
2. Evaluate whether all of the records still need to be retained. States have different guidelines or laws regarding retaining medical records. Some states require a physician to retain records indefinitely or for at least 25 years after the patient’s last visit. Other states only require records to be retained for a certain amount of time (which may differ based on whether the patient was an adult or a minor at the time of the visit). Additionally, rules regarding medical records may vary based on the type of exam performed (i.e. mammography), whether the patient is deceased, and other factors. Consider talking with local counsel or a state medical society in order to make sure that you are retaining your records. Your malpractice carrier may also be helpful in providing you with these guidelines.
3. Try to find a local physician or hospital that may be interested in becoming a custodian of your practice’s medical records. There is a good chance that the custodian could benefit from being a custodian if such person or entity offers medical services the patient requires. A non-physician or commercial storage facility can also act as custodian, if a physician is unable to locate another suitable third party.
Once you have determined who will act as custodian, it’s recommended that the parties enter into a written agreement. The recommended features of a custodial agreement minimally should include the following:
1. All terms should be in a written agreement. Oral understandings cannot be relied upon.
2. The custodian must guarantee future access to the records for both the physician and the patient. The custodian should understand that patients will only be given a copy of their record and that the custodian role in maintaining the original records will continue until otherwise provided for in the custodial agreement. Patients should be charged for copies in accordance with state law.
3. The fees, if any, to act as custodian should be clearly described.
4. The custodian must agree to keep and maintain the medical records for the retention times that are specified for the particular state.
5. There should be no right to access the information contained in the medical records without a signed release from the patient or properly executed subpoena or court order. If the new custodian is a hospital or a physician, then records could be accessed for treatment purposes.
6. In the event that the custodian relocates, goes out of business, or changes any contact information, the original physician or the physician’s personal representative must be notified. It is also recommended that the agreement set forth a process by which decisions will be made on how to ensure the safety of, and continued access to, the records.
7. State and federal laws governing medical record confidentiality, access, and disclosure should be stated in the custodial agreement.
Once a custodian is located and an agreement is reached between the parties, don’t forget to share this information with patients who will need to know how they can access their records. Consider consulting with legal counsel to assure that you have met all of your legal obligations with regard to your medical practice’s closure, including handling of medical records.
Find out more about Ericka Adler and our other Practice Notes bloggers.