NEW YORK - MEDICAL RECORDS

I. CREATION OF A MEDICAL RECORD

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

Yes. The Education Law requires physicians to maintain a medical record which accurately reflects the evaluation and treatment of each patient.

2. What should the medical record contain?

Physicians must prepare contemporaneous, permanent treatment records which reflect the actual treatment or services rendered. Such record should contain patient information regarding the examination, health assessment or treatment of a patient.

(Public Health Law § 18 (1)(e))

Generally, the following is recommended to be contained within a patient's medical record:

A. Information sufficient to identify the patient;

B. Dates of each patient visit;

C. Patient complaints;

D. Patient history;

E. Findings on appropriate examinations;

F. Progress notes;

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

H. Diagnosis or medical impression;

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

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

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

L. 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;

M. Documentation of the patient's consent to perform any procedure; and

N. Documentation of the presence of a chaperone.

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

In a corporation practicing medicine, each report, diagnosis, prognosis and prescription shall be signed by the physician responsible for such report, diagnosis, prognosis or prescription.

(Business Corporation Law § 1504(c))

The physician must also maintain information that is not patient information, as identified by the Public Health Law. Such information includes:

A. a clinical record pertaining to the admission, legal status, care and treatment of a patient of a facility licensed or operated by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities.

(Mental Hygiene Law § 33.13(a)

B. personal notes and observation of a healthcare professional not disclosed to any other person after January 1, 1987.

C. examination records for the patient from another practitioner.

D. confidential data disclosed to the practitioner by other persons.

(Public Health Law § 18 (1)(e))

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

Although the State of New York has yet to promulgate regulations regarding electronic medical records, many physicians are already maintaining patient medical records in electronic form. These records should be secure, confidential and maintained in duplicate on regularly updated backup system,

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

A healthcare provider is required, within 10 days of a written request, to provide a qualified person with an opportunity to inspect a patient's medical records. A qualified person means the patient, the parent or guardian of a minor patient, or a qualified personal representative of the patient. If the practitioner does not have space available to permit the inspection of patient information, the practitioner may, in the alternative, furnish a qualified person a copy of such information within ten days.

Upon the request of any qualified person, a healthcare provider shall furnish to such person, within a reasonable time, a copy of any patient information requested which the person is authorized to inspect.

(Public Health Law § 18 (1)(g) and (2))

If applicable, subjective information in the records shall be provided to the patient, unless, in the exercise of the physician's professional judgment, the provider believes that the patient's mental or physical condition will be adversely affected upon being made aware of such information. In that case, the subjective information shall be provided upon request, along with a notice setting forth the reasons for the original refusal to the patient's attorney, another licensed health care professional, the patient's health insurance carrier, or a governmental reimbursement program.

(Public Health Law § 17 and 18 (3))

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

No. A qualified person shall not be denied access to patient information solely because of inability to pay.

(Public Health Law § 17 and 18 (2)(e))

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

An independent medical examiner is not a treating physician for the claimant and thus, no physician patient relationship is established by a virtue of an independent medical examination. ("IME"). However, the records generated in the course of such examination are protected by the Public Health Law and cannot be released absent a written authorization.

Once a practitioner performs an IME, the practitioner is required to submit a copy of the report of such examination to the workmen's compensation board, the insurance carrier, the claimant's attending physician or other attending practitioner, the claimant's representative and the claimant. A copy of the report is required to be submitted to each party on the same day and in the same manner.

(Workers' Compensation Law 137 (1); Workers' Compensation Board Rules and Regs. § 300.2 (d)(5))

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

Yes. A medical provider may impose a charge for the copying of medical records, not exceeding the costs incurred by such provider, which shall not exceed $.75 per page. A provider may not impose a charge for copying an original mammogram when the original has been furnished to any qualified person, provided that any charge for furnishing an original mammogram shall not exceed the documented costs associated therewith.

(Public Health Law § 18 (2)(e))

7. How long must physicians retain patient medical records?

Regulations require that treatment records be retained for the following durations:

A. For adults: for six years from the date of the most recent entry.

B. For children: for six years from the date of the most recent entry, or until one year after the minor reaches the age of eighteen years, whichever is later.

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

(Education Law § 6530 (32))

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 Department of Health or the Office of the Attorney General;

(C.P.L.R. § 2301, 2302)

B. A physician must release records as required by law, such as the reporting of communicable diseases or gunshot wounds; suspected child abuse; addiction to narcotic drugs, etc.;

(10 N.Y.C.R.R. § 2.10; Penal Law § 265.25; Social Services Law § 413; Public Health Law § 3372)

C. A 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 treating the patient; and

(5 C.F.R. §160 and 164)

D. A physician must report to the local heath commissioner an initial diagnosis of or determination that a person is afflicted with HIV or AIDS. The report shall contain information identifying a protected individual and be made without specifically revealing the identity of the protected individual and the names, if available, of any contacts of the protected individual.

(Public Health Law § 2130; see chapter on AIDS)

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

Yes. A physician has a duty to maintain the confidentiality of any information such professional obtained in the course of his or her professional capacity. Where a patient requests the release of records to a third party, such request should not automatically be construed as a waiver of the physician-patient privilege. For example, a patient who authorizes the disclosure of privileged information for the purpose of obtaining insurance benefits is not deemed to have waived such privilege.

(C.P.L.R. § 4504 (a))

When a physician discloses patient information to a third-party pursuant to the law or the patient's request, the physician is required to add to the patient's medical record a copy of the patient's written authorization or a notation of the name and address of the third-party and the purpose for which such disclosure is sought. This requirement does not apply to disclosures made to business associates, or government agencies in connection with a facility inspection or professional medical conduct investigation.

Such disclosure shall be made only to the extent necessary to satisfy the purpose of the request. The party receiving such information is required to maintain the confidence of the information disclosed.

(Public Health Law § 18 (6))

3. 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 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?

It is professional misconduct for a physician to abandon or neglect a patient who is under or in need of immediate professional care, without making reasonable arrangements for the continuation of such care, and for a practitioner to abandon a group practice, hospital, clinic or other health care facility, without providing reasonable notice and under circumstances which seriously impair the delivery of professional care to patients. It is also professional misconduct to fail to maintain patient records in accordance with statutory guidelines.

(Education Law § 6530 (30) and (32))

2. Termination of employment from a group practice

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

Generally, the physician generating records in the course of the examination and treatment of a patient is the owner of such records. Ownership over patient records is a property right and, in the context of a private practice, such property rights are vested in the physician and not the patient.

(Damsker v Haque, 93 A.D.2d 729 (1^st Dept, 1983); Public Health Law § 18; Education Law § 6530 (32))

In the context of a group practice, the physician's ownership rights over such records as against other physicians depends, among other issues, on the physician's relationship with the practice and whether the practice has the ability to treat patients. In Parsley v Associates in Internal Medicine, P.C. 126 Misc.2d 996 (Sup Ct, Broome County, 1985), the court held that a physician employee of a professional service corporation is an agent of the corporation and has no property interest in the records of the patients he treated. Accordingly, the physician did not have a right to remove such patient records.

Absent an agreement to the contrary, a limited partnership engaged in the practice of medicine does not own the medical records. Rather, the records are owned by the individual physician partners.

ProHealthcare Associates, LLP v. April (798 N.Y.S.2d 347, 2204 WL 1872915 (Sup. Ct., Nassau County, 2004))

IV . DISPOSITION OF RECORDS

How should medical records be destroyed?

New York has not promulgated any rules regarding the manner in which medical records should be destroyed. Records should be destroyed in a manner which protects the confidentiality of the record during the process of destruction.

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