March 25, 2008

New Jersey state laws and regulations that affect your medical practice

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

Yes. The State Board of Medical Examiners (SBME) requires that a medical record be created for each patient.

(Meeting of SBME, August 12, 1981)

2. How long must medical records be maintained?

Treatment records shall be maintained for a period of seven (7) years from the date of the most recent entry.

(N.J.A.C. 13:35-6.5)

3. What should the medical record contain?

Physicians must prepare contemporaneous, permanent professional treatment records. They must also maintain records relating to billings made to patients and third-party carriers for professional services. All treatment records, bills and claim forms shall accurately reflect the treatment or services rendered.

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

1. Dates of all treatments;

2. Patient complaints;

3. Patient history;

4. Findings on appropriate examinations;

5. Progress notes;

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

7. Diagnosis or medical impression;

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

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

10. Documentation when, in the reasonable exercise of the physician’s judgment, the communication of test results is necessary and action thereon needs to be taken, but reasonable efforts made by the physician responsible for communications have been unsuccessful; and

11. Documentation of the existence of any advance directive for health care for an adult or emancipated minor, and associated pertinent information. Documented inquiry shall be made on the routine intake history form for a new patient who is a competent adult or emancipated minor. The treating doctor shall also make and document specific inquiry of or regarding a patient in appropriate circumstances, such as when providing treatment for a significant illness, or where an emergency has occurred presenting imminent threat to life, or where surgery is anticipated with use of general anesthesia.

B. Corrections and additions can be made, provided that each change is clearly identified as such, dated and initialed by the physician.

(N.J.A.C. 13:35-6.5)

4. Can patient records be prepared and maintained on a computer?

Yes, as long as the record meets the following criteria:

1. The patient record should have at least two forms of identification; for example, name and record number or any other specific identifying information;

2. An entry in the patient record shall be made by the physician contemporaneously with the medical service and shall contain the date of service, date of entry, and full printed name of the treatment provider. The physician shall finalize or “sign” the entry by means of a confidential personal code (“CPC”) and include date of the “signing;”

3. Alternatively, the physician may dictate a date entry for later transcription. The transcription shall be dated and identified as “preliminary” until reviewed, finalized and dated by the responsible physician;

4. The system shall contain an internal permanently activated date and time recordation for all entries, and shall automatically prepare a back-up copy of the file;

5. The system shall be designed in such manner that, after “signing” by means of the CPC, the existing entry cannot be changed in any manner. Notwithstanding the permanent status of a prior entry, a new entry may be made at any time and may indicate correction to a prior entry;

6. Where more than one licensee is authorized to make entries into the computer file of any professional treatment record, the physician responsible for the medical practice shall assure that each such person obtains a CPC and uses the file program in the same manner;

7. A copy of each day’s entry, identified as preliminary or final as applicable, shall be made available promptly:

(a) To a physician responsible for the patient’s care;

(b) To a representative of the Board of Medical Examiners, the Attorney General or the Division of Consumer Affairs as soon as practicable and no later than 10 days after notice; and

(c) To a patient as authorized by this rule within 30 days of request (or promptly in the event of emergency); and

8. A physician wishing to continue a system of computerized patient records, which system does not meet the requirements above, shall promptly initiate arrangements for modification of the system. In the interim, the physician shall assure that, on the date of the first treatment of each patient, the computer entry for that first visit shall be accompanied by a hard copy printout of the entire computer-recorded treatment record. The printout shall be dated and initialed by the attending licensee. Thereafter, a hard copy shall be prepared for each subsequent visit, continuing to the date of the changeover of computer program, with each page initialed by the treating licensee. The initial printout and the subsequent hard copies shall be retained as a permanent part of the patient record.

(N.J.A.C. 13:35-6.5)

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

A. No later than 30 days from receipt of a request from a patient or an authorized representative, the physician shall provide a copy of the professional treatment record, and/or billing records as may be requested. The record shall include all pertinent objective data including test results and x-ray results, as applicable, and subjective information.

B. Unless otherwise required by law, a physician may elect to provide a summary of the record in lieu of providing a photocopy of the actual record, so long as that summary adequately reflects the patient’s history and treatment. A physician may charge a reasonable fee for the preparation of a summary which has been provided in lieu of the actual record, which shall not exceed the cost as set forth below for that specific record.

C. If, in the exercise of professional judgment, a physician has reason to believe that the patient’s mental or physical condition will be adversely affected upon being made aware of the subjective information contained in the professional treatment record or a summary thereof, with an accompanying notice setting forth the reasons for the original refusal, shall nevertheless be provided upon request and directly to:

1. The patient’s attorney;

2. Another licensed health care professional;

3. The patient’s health insurance carrier through an employee thereof; or

4. A governmental reimbursement program or an agent thereof, with responsibility to review utilization and/or quality of care.

D. Physicians may require a record request to be in writing and may charge a fee for:

1. The reproduction of records, which shall be no greater than $1.00 per page or $100.00 for the entire record, whichever is less. (If the record requested is less than 10 pages, the physician may charge up to $10.00 to cover postage and the miscellaneous costs associated with retrieval of the record). If the physician is electing to provide a summary in lieu of the actual record, the charge for the summary shall not exceed the cost that would be charged for the actual record; and/or

2. The reproduction of x-rays or any other material within a patient record which cannot be routinely copied or duplicated on a commercial photocopy machine, which shall be no more than the actual cost of the duplication of the materials, or the fee charged to the physician for duplication, plus an administrative fee of the lesser of $10.00 or 10 percent of the cost of reproduction to compensate for office personnel time spent retrieving or reproducing the materials and overhead costs.

E. Physicians shall not charge a patient for a copy of the patient’s record when:

1. The physician has affirmatively terminated a patient from practice; or

2. The physician leave a practice that he or she was formerly a member of, or associated with, and the patient requests that his or her medical care continue to be provided by that physician.

F. If the patient or a subsequent treating health care professional is unable to read the treatment record, either because it is illegible or prepared in a language other than English, the physician shall provide a transcription at no cost to the patient.

(N.J.A.C. 13:35-6.5)

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

No. A physician shall not refuse to provide a professional treatment record on the grounds that the patient owes the physician an unpaid balance if the record is needed by another health care professional for the purpose of rendering care.

(N.J.A.C. 13:35-6.5; Meeting of SBME, January 11, 1978)

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

Yes. The following exceptions apply:

A. The physician shall release patient records as directed by a subpoena issued by the Board of Medical Examiners or the Office of the Attorney General, or by a demand for statement in writing under oath. Such records shall be originals, unless otherwise specified, and shall be unedited, with full patient names. To the extent that the record is illegible, the physician, upon request, shall provide a typed transcription of the record. If the record is in a language other than English, the physician shall also provide a translation. All x-ray films and reports maintained by the physician, including those prepared by other health care professionals, shall also be provided.

B. The physician shall release information as required by law or regulation, 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.

C. The physician, in the exercise of professional judgment, and in the best interests of the patient (even absent the patient’s request), may release pertinent information about the patient’s treatment to another licensed health care professional who is providing or has been asked to provide treatment to the patient, or whose expertise may assist the physician in his or her rendition of professional services.

D. The physician, in the exercise of professional judgment, who has a good faith belief that the patient, because of a mental or physical condition may pose an imminent danger to himself or herself or to others, may release pertinent information to a law enforcement agency or other health care professional to minimize the threat of danger. Nothing in this paragraph, however, shall be construed to authorize the release of the content of a record containing identifying information about a person who has AIDS or an HIV infection, without patient consent, for any purpose other than those authorized by law. If a physician, without the consent of the patient, seeks to release information contained in an AIDS/HIV record to a law enforcement agency or other health care professional in order to minimize the threat of danger to others, an application to the court shall be made.

(N.J.A.C. 13:35-6.5)

8. 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. To do so 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 or mark the material "Confidential."

(N.J.A.C. 13:35-6.5)

9. What procedures should be followed when a third party requests an examination or evaluation of a patient?

A. The physician shall prepare appropriate records and maintain their confidentiality except as set forth in this section;

B. The physician shall assure that the scope of the report is consistent with the third party’s request, to avoid unnecessary disclosure of diagnoses or personal information that is not pertinent;

C. The physician shall forward the report to the specific individual making the request in accordance with the terms of the patient’s authorization; if no specific individual is identified, the report should be marked “Confidential;” and

D. The physician shall not provide the patient with a report of an examination requested by a third party unless the third party or entity consents to its release, except that should the examination disclose abnormalities or conditions not known to the patient, the physician shall advise the patient to consult another health care professional for treatment; and

(N.J.A.C. 13:35-6.5)

E. Under HIPAA, a covered entity such as a physician’s office may disclose protected health information (PHI) without the patient’s authorization to a public health authority that is legally permitted to collect or receive such information for public health surveillance or related activities. A covered entity is also required to account to the patient for such disclosures of PHI, if the patient asks. Further, making a set of records available for review by a third party constitutes a “disclosure” of the PHI in the entire set of records, regardless of whether the third party actually reviews any particular record. Thus, mere access by a third party, such as a public health authority, to PHI is a disclosure and subject to an accounting for disclosures.

(45 C.F.R. §164.512(b)(1); 45 C.F.R. §164.528; 45 C.F.R. §164.501)

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

If a physician ceases to engage in practice or it is anticipated that he or she will remain out of practice for more than three months, the physician must:

A. Establish a procedure by which patients can obtain a copy of the treatment records or acquiesce in the transfer of those records to another licensee or health care professional who is assuming the responsibilities of the practice. However, a physician shall not charge a patient for a copy of the records, when the records will be used for purposes of continuing treatment or care;

B. Publish a notice of the cessation of the practice and the established procedure for the retrieval of records in a newspaper of general circulation in the geographic location of the physician’s practice, at least once each month for the first three months after the cessation; and

C. Make reasonable efforts to directly notify any patient treated during the six months preceding the cessation, providing information concerning the established procedure for retrieval of records.

(N.J.A.C. 13:35-6.5)

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

The SBME has determined that the Patient Record Rule's primary purpose is the protection of the patient with respect to preparation and preservation of an accurate record for present and future care. As such, while the requirement to create the record is imposed on each treating physician, the requirement to maintain the record shall be satisfied as long as a physician maintains possession and care of such record. If the patient was originally treated in any form of group practice, according to the SBME, it would appear sufficient for the record to remain with the original central repository for those records. There is thus neither a requirement nor a right as to a departing physician to take with him or her a copy of a record of a patient previously treated.

Any other allocation of the patient record as among remaining and departing physicians would appear to be a matter of private contractual agreement. However, the patient always has the right to make the election of a treating physician. Thus, any patient wishing to continue care with a departing physician is always free, under the rule for release of patient records, 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.

Further, a departing physician can always properly advise the public, including the patients at the old location, that his or her medical practice will be continuing at a new location.

(Meeting of SBME, August 12, 1981)

12. How should medical records be destroyed?

The SBME has ruled that any method to be used for destroying medical records must 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.

Updated 2008