TEXAS - MEDICAL RECORDS

January 1, 2008

State laws and regulations that affect your medical practice

I. CREATION OF A MEDICAL RECORD

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

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

2. What should the medical record contain?

Physicians must prepare an "adequate medical record" which meets the following standards:

A. The documentation of each patient encounter should include:

(1) reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;

(2) an assessment, clinical impression, or diagnosis;

(3) plan for care (including discharge plan if appropriate); and

(4) the date and legible identity of the observer.

B. Past and present diagnoses should be accessible to the treating and/or consulting physician.

C. The rationale for and results of diagnostic and other ancillary services should be included in the medical record.

D. The patient's progress, including response to treatment, change in diagnosis, and patient's non-compliance should be documented.

E. Relevant risk factors should be identified.

F. The written plan for care should include, when appropriate:

(1) treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills, and dosage;

(2) any referrals and consultations;

(3) patient/family education; and,

(4) specific instructions for follow up.

G. Any written consents for treatment or surgery requested from the patient/family by the physician.

H. Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.

I. Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation must be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.

J. Records received from another physician or health care provider involved in the care or treatment of the patient must be maintained as part of the patient's medical records.

K. The Board acknowledges that the nature and amount of physician work and documentation varies by type of services, place of service and the patient's status. The above information may be modified to account for these variable circumstances in providing medical care.

L. Medical records must also include copies of all patient-related electronic communications, including patient-physician e-mail, prescriptions, laboratory and test results, evaluations and consultations, records of past care and instructions.

M. Notice of privacy practices related to the use of e-mail must be filed in the medical record

22 TAC § 165; 22 TAC § 174.41

N. If applicable, a copy of a letter regarding the need for payment for copying requested medical records must be made part of the patient's medical and/or billing record.

22 TAC § 165.2

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

Texas allows a medical record to be retained in hard copy, microform (microfilm or microfiche), or other electronic medium.

25 TX ADC § 133.2

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

Physicians must provide billing or medical records, or a summary or narrative of the records, including records received from a physician or other healthcare provider involved in the care or treatment of the patient to a patient or an authorized representative no later than 15 business days from receipt of a written consent for release of information and reasonable fees for furnishing the information. The physician may delete confidential information about another patient or family member of the patient who has not consented to the release. The record must include all objective information such as test results and x-rays.

If applicable, subjective information in the records must be provided to the patient, unless, in the exercise of the physician's professional judgment, he or she determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. If the physician denies the request for copies of medical and/or billing records or a summary or narrative of the records, either in whole or in part, the physician must furnish the patient a written statement, signed and dated, within 15 business days of receipt of the request stating the reason for the denial and how the patient can file a complaint with the federal Department of Health and Human Services (if the physician is subject to HIPAA) and the TSBME . A copy of the statement denying the request must be placed in the patient's medical and/or billing records as appropriate.

Tex. Occ. § 159.006; 22 TAC § 165.2; 22 TAC § 165.3

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

No. Medical and/or billing records requested pursuant to a proper request for release may not be withheld from a patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient

22 TAC § 165.2

6. 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)

On the request of an injured employee, the employee's attorney, or the insurance carrier, a physician must furnish records relating to treatment or hospitalization for which compensation is being sought. A health care provider may disclose to the insurance carrier of an affected employer records relating to the diagnosis or treatment of the injured employee without the authorization of the injured employee to determine the amount of payment or the entitlement to payment.

Tex. Labor Code §408.0041(c), 408.025

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

Yes. The physician providing copies of requested medical and/or billing records or a summary or a narrative of such records is entitled to payment of a "reasonable fee" prior to release of the information unless the information is requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care.

"Reasonable Fee" includes:

i. A fee of no more than $25 for the first twenty pages and $.50 per page for every copy thereafter may be charged.

ii. If an affidavit is requested, certifying that the information is a true and correct copy of the records, a fee of up to $15 may be charged for executing the affidavit.

A physician may charge separate fees for medical and billing records requested. The fee may not include costs associated with searching for and retrieving the requested information.

In the event the physician receives a proper request for copies of medical and/or billing records or a summary or narrative of the records for purposes other than for emergency or acute medical care, the physician may retain the requested information until payment is received. If payment is not routed with such a request, within ten (10) calendar days from receiving a request for the release of such records, the physician must notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received.

22 TAC § 165.2; Tex. Health & Safety Code § 161.202

8. How long must physicians retain patient medical records?

Regulations require that treatment records be retained by:

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

B. Individuals younger than 18 years when last treated by the physician: until the patient reaches age 21 or for seven years from the date of last treatment, whichever is longer.

C. Unemancipated minor patient on whom a physician performs an abortion: until the later of the fifth anniversary of the date of the patient's majority or the seventh anniversary of the date the physician received or created the documentation for the record.

22 TAC § 165.6

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 TSBME 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.

Further, Texas law does not authorize the release of confidential information to investigate or substantiate criminal charges against a patient.

TX OCC § 159.004; 22 TAC § 165.2; 25 TAC § 405.288; TX Health & Safety Code § 81.103; TX, Family Code § 33.008; TX OCC § 159.006; 22 TAC § 179.4

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. 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."

TX OCC § 159.005

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

The physician must:

A. ensure that patients receive reasonable notification and are given the opportunity to obtain copies of their records or arrange for the transfer of their medical records to another physician. Notification may be accomplished by:

(1) publishing a notice in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area;

(2) placing a written notice in the physician's office; and

(3) sending letters to patients seen in the last two years notifying them of discontinuance of practice.

A copy of the notice must be submitted to the TSBME within thirty (30) days from the date of termination, sale, or relocation of the practice.

B. notify the TSBME when terminating practice, retiring, or relocating, and no longer available to patients, specifying who has custodianship of the records, and how the medical records may be obtained.

22 TAC § 165.5; 25 TAC § 571.12

4. 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?

A physician departing from employment remains responsible for providing notification consistent with the 1(A) and (B) above.

22 TAC § 165.5

5. Voluntary Surrender or Revocation of Physician's License.

Physicians who have voluntarily surrendered their licenses in lieu of disciplinary action or have had their licenses revoked by the TSBME must:

1. Notify their patients within 30 days of the effective date of the voluntary surrender or revocation; and

2. Obtain a custodian for their records to be approved by the Board within 30 days of the effective date of the voluntary surrender or revocation.

22 TAC § 165.5

IV . DISPOSITION OF RECORD

1. How should medical records be destroyed?

Any method to be used for destroying medical records must protect confidential information and patient identity.

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.

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