PENNSYLVANIA - MEDICAL RECORDS

January 1, 2008

Pennsylvania 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 State Board of Medicine (PSBM) requires that a medical record be created for each patient.

2. The medical record must contain the following:

A. information sufficient to clearly identify the patient;

B. information sufficient to clearly identify the person making the entry if the person is not the physician (such as a physician assistant or a certified registered nurse practitioner);

C. the date of the medical record entry;

D. patient complaints and symptoms;

E. clinical information pertaining to the patient which has been accumulated by the physician, either by himself or through his agents;

F. diagnoses; and

G. the findings and results of pathologic or clinical laboratory examination radiology examination, medical and surgical treatment and other diagnostic, corrective or therapeutic procedures.

49 Pa. Code §16.95

In addition to A-G above, osteopathic doctors must also maintain corrective or therapeutic procedures, including prescription drug orders, arising out of the osteopath's care of the patient.

49 PA ADC §25.213

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

Upon a patient's written request, a physician must make available the medical record or a copy of the medical record relating to the patient which is in the possession or under the control of the physician. A physician may withhold information from a patient if, in the reasonable exercise of his professional judgment, he believes release of the information would adversely affect the patient's health.

49 PA ADC §16.61

Osteopathic physicians must provide a patient with a complete copy of the patient's medical record, within "a reasonable time" of the request of the patient or an authorized representative.

49 PA ADC §25.213

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

Prior payment for professional services to which the records relate-this does not apply to fees charged for reports-may not be required as a condition for making the records available.

49 PA ADC §16.61

5. What are the regulations regarding a company or an organization's medical records of employees?

Employees have the right to inspect their medical records if they have a concern that they have been exposed to harmful chemical substances.

35 P.S. §7309; CFR 1910.20(g)

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

The physician providing copies of requested medical may charge a reasonable fee for making available copies, forms or reports.

49 PA ADC §16.61

Effective January 1, 2007, charges for medical records may not exceed:

A. $18.54 for search and retrieval;

B. $1.25 per page for the first 20 pages;

C. $.93 per page for pages 21 through 60;

D. $.31 per page for pages 61 and thereafter;

E. $1.83 per page for copies from microfilm;

F. $23.49 flat fee for copies to support claims or appeals under the Social Security Act or claims under other Federal or State financial needs-based benefits programs.

G. $18.54 flat fee for supplying records requested by a district attorney. Only the actual cost of postage or delivery may be charged. The limitation on charges applies regardless of whether the records are obtained by written medical authorization or by subpoena. These charges do not apply to an X-ray film or any other portion of a medical record that is not susceptible to photostatic reproduction. (Pennsylvania Act 26 of 1998)

42 Pa. C.S.A. §6152

7. How long must physicians retain patient medical records?

Regulations require that treatment records be retained for:

A. Adults: A period of at least seven (7) years from the anniversary date of the date of last treatment by the physician.

B. Individuals younger than 18 years: until 1 year after the minor patient reaches majority, even if this means that the physician retains the record for a period of more than seven (7) years. In the case of osteopathic physicians, the medical record must be retained until two (2) years after the patient's 18th birthday or seven (7) years from the last entry, whichever is later.

49 Pa. Code §25.213

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 must release patient records as directed by subpoena, or other written demand under oath, when issued by the PSBM 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;

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

D. A 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 to others, may release pertinent information to a law enforcement agency or other health care professional to minimize the threat of danger.

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.

49 PA ADC § 25.213; 49 PA ADC § 25.415

Osteopathic physicians must maintain the confidentiality of Medical records unless disclosure is required for bona fide treatment, with the patient's written consent, except as follows:

A. Upon receipt of a court order for the production of document;

B. Upon lawful demand by auditors for public or private third-party payers which have contracted to reimburse the licensee for services provided to the patient;

C. To defend against allegations of civil or criminal medical malpractice, if the licensee's treatment of the patient has been placed at issue by the complaining party, and only to the extent necessary to controvert factual allegations in the complaint.

D. To comply with other relevant State or Federal health care laws.

49 Pa. Code § 25.213

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. A 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 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 termination of employment or relocation?

While there is no specific State law addressing this issue, it is recommended that a physician who ceases to engage in practice or anticipates a leave of absence for more than three months:

A. Establish a procedure by which patients can obtain treatment records or can request the transfer of those records to another licensee or health care professional who is assuming the responsibility of the physician's practice;

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 licensee'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.

2. Termination of employment from a group practice.

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

How should medical records be destroyed?

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. Note, however, that a physician may destroy medical records that relate to any civil, criminal or administrative proceeding only if the physician knows the proceeding has been finally resolved.

(49 PA ADC § 16.61)

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