MASSACHUSETTS - MEDICAL RECORDS

January 1, 2008

Massachusetts state laws and regulations that affect your medical practice

I. CREATION OF A MEDICAL RECORD

1. Must all physicians create a medical record for a patient?

Yes. The Massachusetts Board of Registration in Medicine (Board) requires that a medical record be created for each patient.

243 MA ADC 2.07

2. What should the medical record contain?

Physicians must prepare contemporaneous, permanent treatment records which reflect the actual treatment or services rendered.

243 MA ADC 2.07

Generally, the following should be contained within the treatment record:

A. Dates of all treatments;

B. Patient complaints;

C. Patient history;

D. Findings on appropriate examinations;

E. Progress notes;

F. Any orders for tests or consultations and the results thereof;

G. Diagnosis or medical impression;

H. Treatment ordered, including specific dosages, quantities and strengths of medications, including refills, if prescribed, administered or dispensed, and recommended follow-up;

I. Physician's or provider's identity, if service is provided in multi-provider setting;

J. Any information regarding suggested actions to be taken that were nonetheless disregarded by the patients;

K. Information regarding any advance directive for healthcare for an adult or emancipated minor. Inquiry and documentation of this information must also be included on the routine intake history form for a new patient who is a competent adult or emancipated minor. In addition, the treating doctor shall request and document this information when providing treatment for a significant illness, a life-threatening emergency, or where surgery is anticipated with use of general anesthesia.

L. In the case of patients who have breast cancer, unless the patient waives the requirement, a physician is required to document in the medical record and provide the following information in an understandable manner to a patient whom the physician accepts for treatment with known or suspected cancer of the breast:

1. a description of alternative methods of therapy including surgical procedures, radiation therapy, chemotherapy and combinations of these methods;

2. a discussion of the currently known risks and benefits of each alternative method; and

3. answers to the patient's questions concerning the alternatives.

If the patient desires consultation with a surgeon, radiotherapist, or chemotherapist, a physician shall provide the name or names of such qualified consultants.

A physician is excused from compliance with the above requirements if the physician informs the breast cancer patient of the physician's willingness to provide information concerning alternative forms of treatment and said patient indicates that he or she does not wish to discuss the matter further.

243 MA ADC 2.07

3. What are a physician's obligations to provide medical records on the request of the patient?

Upon a patient's request, a physician shall provide in a timely manner (two to three weeks is considered reasonable by the Board), to a patient, other physician or other specifically authorized person:

A. The opportunity to inspect that patient's medical record;

B. A copy of such record. However, a physician who devotes a substantial portion of his or her time their time to the practice of psychiatry shall if, in the reasonable exercise of professional judgment, determine that providing the entire medical record would adversely affect the patient's well-being, make a summary of the record available to the patient. If a patient continues to request the entire record, notwithstanding the physician's determination, he or she must make the entire record available to either the patient's attorney, with the patient's consent, or to such other psychotherapist as designated by the patient; and

C. A copy of any previously completed report required for third party reimbursement.

243 MA ADC 2.07

4. May a physician withhold medical records on the basis that the patient owed money to the physician for services rendered?

A physician may not require prior payment of the charges for the medical services to which such material relates as a condition for making it available. However, physicians may hold a copy of medical records until the requesting patient pays the cost to reproduce the record.

243 MA ADC 2.07

5. What are the regulations regarding the release of medical records following a workers' compensation examination?

The HIPAA Privacy Rule permits covered entities to disclose Protected Health Information to workers' compensation insurers, state administrators, employers or other persons or entities involved in the workers' compensation system without the injured employee's authorization "[a]s authorized and to the extent necessary to comply with laws relating to workers' compensation or similar programs established by law that provide benefits for work-relate injuries or illness without regard to fault."

45 C.F.R. §164.512(l)

6. May a physician charge for copying costs of medical records?

Yes. The Board permits a physician to charge a reasonable fee for the reproduction of records. A physician may charge per page for copies and per hour for clerical time necessary to provide such record. Physicians may charge up to $. 50/page for the copying costs of the first 100 pages of medical record, and $.25 per page in excess of 100 pages. Physicians are also allowed to recover any postage expenses they incur for mailing records. Charges for copies of x-rays and similar documents not reproducible by ordinary photocopying shall be at the physician's actual cost, plus reasonable clerical fees not in excess of $20.00/hour.

A physician may not charge a patient for a copy of the patient's record when the record is requested for the purpose of supporting a claim or appeal under any provision of the Social Security Act or any federal or state financial needs-based benefit program.

M.G.L.A. 112 § 12CC; 243 MA ADC 2.07; Chapter 134 of the Acts of 2003)

7. How long must physicians retain patient medical records?

Regulations require that treatment records existing on or after January 1, 1990, be retained for:

A. Adults: A period of seven years from the date of the most recent entry.

B. Children: At least ten years after the minor reaches the age of majority or twenty years after the last day of treatment.

In addition, regulations mandate that physicians maintain records relating to billings made to patients and third-party carriers for professional services.

243 MA ADC 2.07

II. CONFIDENTIALITY

1. Are there any exceptions to the general rule that physicians must maintain the confidentiality of medical records?

Yes. The following exceptions apply:

A. A physician shall release patient records as directed by subpoena, or other written demand under oath, when issued by the Board or the Office of the Attorney General;

B. A physician must release records as required by law, such as the reporting of communicable diseases or gunshot wounds or suspected child abuse, etc., or when the patient's treatment is the subject of peer review; and

C. If, in the reasonable exercise of his professional judgment, a licensee determines that providing the entire medical record would adversely affect the patient's well-being, the licensee shall make a summary of the record available to the patient. If a patient continues to request the entire record, notwithstanding the licensee's determination, the licensee shall make the entire record available to either the patient's attorney, with the patient's consent, or to such other psychotherapist as designated by the patient.

The above-listed exceptions do not apply to release of a record without patient consent that contains identifying information about a person who has AIDS or HIV infection. If a physician seeks to release information contained in an AIDS/HIV record to a law enforcement agency or health care professional to minimize the threat of danger to others, the physician must make an application to the court.

(243 MA ADC 2.07)

2. Must physicians also assure the confidentiality of a patient's record where the patient has requested the release of records to a specified individual or entity?

Yes. The physician must assure the confidentiality of medical records. Generally, the physician should:

A. Secure and maintain a current. HIPAA compliant written authorization signed by the patient or an authorized representative;

B. Assure that the scope of the release is consistent with the request; and

C. Forward the records to the attention of the specific individual identified and mark the material "Confidential."

45 CFR 164.512(b)(1); 45 CFR 164.528; 45 CFR 164.501

III. TERMINATION OF PRACTICE OR EMPLOYMENT

1. What should be done with medical records upon a physician's leave of absence, death, retirement or relocation?

A retiring physician, his or her successor, or his or her estate must retain such patient records in a manner which permits his or her former patients and their successor physicians access to them for a minimum period of seven years or until a child patient reaches the age of nine.

243 MA ADC 2.07

2. May a physician take the medical records of a patient that he/she has treated upon the termination or dissolution of a group practice?

While there is no State law or Board rule addressing this issue, the requirement to maintain a patients medical record should be satisfied as long as a physician maintains possession and care of such record.

Any other allocation of the patient record as among remaining and departing physicians is generally a matter of private contractual agreement. Generally, any patient wishing to continue care with a departing physician is always free to request the custodian of the records to provide copies of the record to the patient directly or to transfer same to the departing physician at the new office location.

IV . DISPOSITION OF RECORDS

1. How should medical records be destroyed?

While there is no State law or Board rule addressing this issue, any method to be used for destroying medical records should generally protect confidential information and patient identity. Once notification requirements have been complied with, the physician should consider shredding or burning the documents rather than simply disposing of them in a garbage receptacle.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.