• Medical Records

    Texas Medical Association (TMA) - Medical Records Info and Guidance 
    The Texas Medical Association (TMA) offers an excellent publication Managing Your Medical Records that covers the rules of consent, release and disclosure, how to maintain and store your medical records in a HIPAA-compliant manner, how to apply appropriate measures for retaining and destroying them, and much more. For details and to order this publication... 

    TMA's Office of the General Counsel provides several whitepapers and articles on medical records. For these and other TMA resources...

    For some additional guidance from TMA:
    -- Never alter medical records
    -- Are your patient charts "missing in action"? 
    -- What NOT to include in a medical record
    -- Electronic medical record documentation pointers 
    -- Moving patient charts from paper to electronic form
    -- HIPAA and Medical Power of Attorney  
    -- Access to their medical records - physicians must be aware of clauses in managed care or employment contracts

    Texas Medical Board Rules (TMB) Chapter 165 on Medical Records

    For the Texas Medical Board's complete and most up to date set of rules concerning medical records, please refer to Chapter 165, Medical Records.

    Also, the Texas Medical Practice Act/Texas Occupations Code provides additional guidance on confidentiality and information furnished by physicians under Title 3, Chapter 159: Physician-Patient Communication.

    Below is a very brief review of some of the TMB requirements:

    Contents of Medical Records 
    Source: TMB Rules 165.1(a) Contents of Medical Records - TMB rules state: "Regardless of the medium utilized," each licensed physician shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible.

    Below are just some of the contents required. Please refer to the TMB's most current rules under Chapter 165 Medical Records for a complete list of the standards.

    Source: TMB Rules 165.1(a)(8) - The rules state: Include a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient.
    This language adds relevant emails, texts, or other electronic communications to the elements of an "adequate medical record."  This also would apply to non-electronic communication, such as a conversation between a physician and patient that may be outside the usual medical setting, but that involves the patient's medical care. Such documentation helps with patient care and confirms the receipt of instructions given to the patient.

    Source: TMB Rules 165.1(a)(10) - An additional requirement is that: All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.
    Since many electronic health records (EHR) pre-populate certain fields, physicians must be especially careful that all "non-biographical" information is accurate and up-to-date. TMB defines "non-biographical" data/information as information that will typically change from visit to visit, such as symptoms, diagnoses, vitals, lab levels, history, previous treatments, etc.  Between encounters, symptoms often resolve, diagnoses may no longer be active or present, and vitals fluctuate; therefore, such data fields should not contain inaccurate, non-current, or irrelevant information that is not pertinent to the present illness. Since some EHR data fields might be set to "default," physicians should be careful to review the notes to ensure they are individualized for each encounter and to avoid importing incorrect information. Make sure medical history, medications, and allergies are consistently and appropriately updated. Also, do not leave areas in templates blank. Delete those areas or mark them as "not applicable."  For more information, please refer to the TMB FAQs Web page and click on Laws & Rules, then Medical Records....  That page also includes a link to the "Position Statement by the Texas Medical Board on Electronic Medical Records."

    For assistance concerning these TMB rules, please see the July 2015 issue of Texas Medicine (TMA) article "Documenting Patient Care in EHRs."
    Also, see the HCMS Physician Newsletter, issue May 15, 2016: "A message from the TMB on EHRs" regarding medical records documentation. 

    Texas Medical Liability Trust (TMLT) The Reporter, 2015 Volume 2, also provides excellent guidance in the article "EHR best practices: Complying with new TMB documentation rules."  This article also discusses passwords, completing and locking notes, tracking and signing test results, the addendum process, the use of scribes, and more.

    For a complete list of the TMB standards of an "adequate medical record," please refer to the most current TMB rules under Chapter 165, section 1(a).

    For more information on Health Information Technology, please visit our Web pages on Electronic Health Records and Cybersecurity.

    TMA provides guidance on What Not to Include in a Medical Record...

    Retention of Medical Records
    Source:TMB Rules: 165.1(b) Maintenance of Medical Records - (1) A licensed physician shall maintain adequate medical records of a patient for a minimum of seven years from the anniversary date of the date of last treatment by the physician. However, there are Exceptions:

    -- Exception for minors: (2) If a patient was younger than 18 years of age when last treated by the physician, the medical records of the patient shall be maintained by the physician until the patient reaches age 21 or for seven years from the date of last treatment, whichever is longer.
    -- Exception for records related to legal proceedings: (3) 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. (If in doubt, the physician may wish to place a note on the file that the records should be retained.)
    -- Exception if mandated by other federal or state regulation: (4) Physicians shall retain medical records for such longer length of time than that imposed herein when mandated by other federal or state statute or regulation. (Please refer to below 'exception if health plan contact requirements differ' concerning Medicare Advantage Plans.)
    -- Exception if health plan contact requirements differ: It has been noted that some health plans, such as Medicare Advantage plans, sometimes include a requirement in their contracts that physicians retain their members' records for up to 10 years. Please refer to each payer contract for any specific requirements.
    -- Special consideration for Obstetric Patient's medical records: Per TMA Knowledge Center, physicians who treat women during pregnancy may want to keep those patients' medical records longer than the seven years from date of last treatment, in case any issues arise regarding the prenatal care of the child (regardless if the physician did not actually deliver the baby, or participate in its care once it was born.) Most liability carriers suggest keeping the medical records until the baby the patient was carrying is 21 years of age; however, physicians should check with their liability carrier for recommendations specific to their situation.

    These same retention guidelines apply to the medical records of deceased patients.

    Recommendation: TMA recommends that practices design a retention schedule for each location where they maintain medical records. The plan should include provisions for the automatic transfer of eligible records to inactive storage and later, destruction of the medical record itself. The policy should specify what information to keep, how long to keep it, and what storage medium to use.

    The TMA whitepaper Retention of Medical Records provides guidance in areas such as drug records, lost medical records, pathology-CLIA regulations, comments on federal and state tax records, potential medical professional liability claims, and more. 

    Release of Records
    Source:TMB Rules: 165.2(a) Medical Record Release and Charges - As required by the Medical Practice Act/Texas Occupations Code 159.006, a physician shall furnish copies of medical and/or billing records requested or, if the patient prefers, a summary or narrative of the records pursuant to a written release of the information as provided by the Medical Practice Act 159.005. However, both HIPAA and Texas code do provide some limitations if in the physician's judgment access to that information would be reasonably likely to endanger the life or physical safety of the patient or another person (see info below).  Also, the physician may delete (from the copy only, not from the original record) confidential information about ANOTHER patient or family member of the patient who has not consented to the release.

    The Texas Medical Association (TMA) whitepaper Medical Records Release provides extensive guidance in areas such as HIPAA requirements, mental health records, 'super-confidential' information, AIDS-HIV test info, release without consent, insurer access, and more.

    The federal HIPAA requirements concerning authorization to release are very compatible with Texas law. However, HIPAA does preempt part of the Texas Health & Safety Code involving withholding mental health records. Please refer to the above TMA white paper Medical Records Release concerning mental health records,  grounds for refusing release under Texas law for mental health and  HIPAA preempts portion of the Texas code. Please also refer to grounds for refusing release under HIPAA regulations.

    TMA has a brief Sample Letter Authorization to Release Medical Records... See also TMA's Medical Records Web page for a more detailed sample letter Authorization to Release Medical Records (downloadable in Word format).

    For info on the release of medical records of deceased patients...

    TMA provides guidance concerning exceptions to health plan requests for PHI...  As well as insurer access to medical records...

    For info on the rights of parents, including divorced parents, to access their minor child's chart, please see our Treatment of a Minor (Rights-Parents) Web page.

    Records Created By Other Physicians
    Source: TMB Rules 165.2(d) Contents of Records - For purposes of this section, "medical records" shall include those records as defined in 165.1(a) of this title (relating to Medical Records) and shall include copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made.
    Also, Source: Medical Practice Act/Texas Occupations Code 159.006(a) and HIPAA guidance - Information Furnished by Physician - Unless the physician determines that access to the information is reasonably likely to endanger the life or physical safety of the patient or another person, a physician who receives a written consent for release of information as provided by Section 159.005 shall furnish copies of the requested billing or medical records, or a summary or narrative of the records, including records received from another physician or other health care provider involved in the care or treatment of the patient.
    There is NO exception in the act for documents that may be stamped "do not copy or forward" or "not for release."
    Problem: While seeing a patient, a physician notices the patient's history is inconsistent with the previous medical record and is concerned about the care the patient received from a colleague.
    Recommendation: TMA recommends the following: Simply note in the patient's chart, "Patient's history is inconsistent with prior medical records." Focus the conversation on the situation at hand and what treatment you can offer; and If necessary, a physician can report to the Texas Medical Board any quality or regulatory concerns.

    Billing Records
    Source: TMB Rules 165.2(j) Billing Record Requests - In response to a proper request for release of medical records, a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records. TMB Rules 165.2(e)(4)(B) state a physician may charge separate fees for medical and billing records requested. Although billing codes, including CPT and ICD-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record (TMB Rules 165.1(a)(9), the billing records themselves are not considered to be part of the medical record. Please check your payer/plan contracts for any specific billing record retention requirements.

    Processing Time for Requests
    Source: TMB Rules 165.2(b) Deadline for Release of Records - The requested copies of medical and/or billing records or a summary or a narrative of the records shall be furnished by the physician within 15 business days after the date of receipt of the request and reasonable fees for furnishing the information.

    Denial of Requests
    Source: TMB Rules 165.2(c) Denial of Requests for Records - 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 shall 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 & Human Services (if the physician is subject to HIPAA) and the Texas Medical Board. A copy of the statement denying the request shall be placed in the patient's medical and/or billing records as appropriate.
    The federal HIPAA requirements concerning authorization to release are very compatible with Texas law. However, HIPAA does preempt part of the Texas Health & Safety Code involving withholding mental health records. Please refer to the TMA whitepaper Medical Records Release concerning mental health records,  grounds for refusing release under Texas law for mental health and  HIPAA preempts portion of the Texas code. Please also refer to grounds for refusing release under HIPAA regulations.

    Fees for Copies of Records
    The Texas Medical Association has developed an excellent whitepaper Medical Records-Fee for Copying that provides a comprehensive review of this subject.
    Note: HIPAA also provides information concerning fees that can be charged and the below Texas Medical Board rules meet these requirements.

    Source: Texas Medical Board Rules 165.2(e) Allowable Charges (please also note some Exceptions to the fee allowance listed below) 
    (1) Paper Format. (A) The physician responding to a request for such information in paper format shall be entitled to receive a reasonable, cost-based fee for providing the requested information. (B) A reasonable fee for providing the requested records in paper format shall be a charge of no more than $25 for the first twenty pages and $.50 per page for every copy thereafter.

    (2) Electronic Format. (A) The physician responding to a request for such information to be provided in electronic format shall be entitled to receive a reasonable, cost-based fee for providing the requested information in electronic format. (B) A reasonable fee for providing the requested records in electronic format shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages.

    (3) Hybrid Records Format. (A) The physician responding to a request for such information that is contained partially in electronic format and partially in paper format ("hybrid"), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. (B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of this subsection.

    (4) Other Charges. (A) If an affidavit is requested, certifying that the information is a true and correct copy of the records, whether in paper, electronic or hybrid format, a reasonable fee of up to $15 may be charged for executing the affidavit. (B) A physician may charge separate fees for medical and billing records requested. (C) Allowable charges for copies of diagnostic imaging studies are set forth in §165.3 of this title (relating to Patient Access to Diagnostic Imaging Studies in Physician's Office) and are separate from the charges set forth in this section. 

    (5) A reasonable fee for records provided in a paper, electronic or hybrid format may not include costs associated with searching for and retrieving the requested information, and shall include only the cost of: (A) copying and labor, including, compiling, extracting, scanning, burning onto media, and distributing media; (B) cost of supplies for creating the paper copy or electronic media (if the individual requests portable media) that are not prohibited by federal law; (C) postage, when the individual has requested the copy or summary be mailed; and (D) preparing a summary of the records when appropriate.

    Some Exceptions to the fee allowance:

    --- Disability Claims
    Source: TMB Rules 165.2(k) Prohibited Fees for Records Released Related to Disability Claims - The allowable charges as set forth in this chapter shall be maximum amounts, and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. In particular, under §161.202 of the Texas Health and Safety Code, a physician may not charge a fee for a medical or mental health record requested by a patient, former patient or authorized representative of the patient if the request is related to a benefits or assistance claim based on the patient's disability.
    --- Emergency Requests
    Source: TMB Rules 165.2(f) Emergency Requests - The physician providing copies shall be entitled to payment of a reasonable fee UNLESS the information is requested by a licensed health care provider or a physician for purposes of emergency or acute medical care.  
    --- Past Due Accounts
    Source:TMB Rules 165.2(h) Improper Withholding for Past Due Accounts -  Medical and/or billing records requested pursuant to a proper request for release may not be withheld from the 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.
    ---Search Fee Not Allowed
    A physician may NOT charge a search fee when a practice must go into off-site storage to fulfill a records request. TMB Rules 165.2(e)(5) a reasonable fee specifically prohibit charging a fee for searching for and retrieving the requested information, as does HIPAA.
    --- Other Exceptions and Situations - Please refer to the whitepaper Medical Records-Fee for Copying published by the TMA Office of General Counsel for additional information and guidance, including rules involving copy fees for mental health records,  subpoenas,  utilization review agents, or workers' compensation.

    Withholding Until Request Fee Received
    Source: TMB Rules 165.2(g) Non-emergent Requests - 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 calendar days from receiving a request for the release of such records, the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical and/or billing record as appropriate.  If, however, the records are requested by a physician or health care provider for the purposes of providing emergency or acute medical care to the patient, then the records cannot be withheld.  Also, a physician may not withhold requested medical records based on a past due account.
    The TMA whitepaper on Medical Records Release discusses withholding.for failure to pay copy fee. For allowable fees and exceptions...
    TMA E-tip: Withholding copies of records for failure to pay copy fee

    Photos/Videos in the Medical Records
    Source: Texas Medical Association - In some fields of practice, such as dermatology, photographs are a common way to document a patient's condition and response to treatment. These records are no different from narrative records - the photo is meant to document what is necessary to achieve an adequate medical record and should be considered part of that record. For more...  Also, see TMB Rules 165.3 Patient Access to Diagnostic Imagining Studies in  Physician's Office...

    Subpoenas
    TMA provides assistance on How to Respond to a Subpoena. For info concerning copy fees and subpoenas, see the TMA whitepaper Medical Records-Fee for Copying (Subpoenas). For extensive guidance, please see the TMA whitepaper Subpoenas for Medical Records. TMA also provides help on What to do when you're caught in the middle of a personal injury suit.

    Transfer Ownership / Discontinue Practice
    Source:TMB Rules: 165.1(b)(5) Maintenance of Medical Records - Physicians may transfer ownership of records to another licensed physician or group of physicians only if the physician provides notice consistent with 165.5 of this chapter and the physician who assumes ownership of the records maintains the records consistent with this chapter.
    Source:TMB Rules 165.5 Transfer and Disposal of Medical Records
    (a) Required Notification of Discontinuance of Practice - When a physician retires, terminates employment, or otherwise leaves a medical practice, he or she is responsible for (1) ensuring that patients receive reasonable notification and are given the opportunity to obtain a copy of their medical records or arrange for the transfer of their medical records to another physician; (2) notifying the Texas Medical Board when they are terminating practice, retiring, or relocating, and therefore no longer available to patients, specifying who has custodianship of the records, and how the medical records may be obtained.
    (b) Method of Notification - Notification shall be accomplished by (2)(a) publishing 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; (b) placing written notice in the physician's office; and (c) sending letters to patients seen in the last two years notifying them of the discontinuance of practice.
    (3) A copy of the notice shall be submitted to the Texas Medical Board within 30 days from the date of termination, sale, or relocation of the practice.
    A physician or physician group should not withhold from a departing physician any information that is necessary for notification of patients.
    For additional information, including sample letters/forms from TMA, please refer to our Web pages Closing or Selling Your Practice and Departing from a Group Practice.

    Deceased Patients' Records
    The same medical record retention guidelines also apply to the medical records of deceased patients.
    Concerning the release of medical records of deceased patients: Since there is no exception to confidentiality, outside of a court or administrative proceeding, family members do not always have access to a deceased patient's medical records. Access to these medical records is restricted by law to someone who is designated as a "personal representative" of the deceased. A "personal representative" is someone specifically named by the Texas Probate Code as having the authority, when appointed as such by the probate court, to transact business on the part of the estate. The Texas Medical Liability Trust (TMLT) advises, before fulfilling a request for records of a deceased patient, the physician should ask for evidence of the person's legal capacity to obtain the deceased patient's records. An authorized representative will have legal documents, called Letters of Testamentary or Letters of Administration describing his or her legal authority. As long as the appropriate person is identified to consent to the release of medical records, the same rules apply to records of deceased patients as to the living.

    For additional guidance, please see the Texas Medical Association (TMA) whitepaper Access to Medical Records of a Deceased Patient.

    Destruction of Medical Records
    Source: TMB Rules 165.1(b)(7) - Destruction of medical records shall be done in a manner that ensures continued confidentiality.
    The Texas Medical Association (TMA) Board of Councilors Opinion concerning confidentiality of patient records is: "Physicians face both an ethical and a legal responsibility to safeguard patient communications and information in patients' medical records." 

    (Note: Please refer to Retention of Medical Records to determine when records may be destroyed and what types of records should be retained beyond the normal retention period.)

    When medical records are eligible for destruction, they can be cross-cut shredded (and recycled) or can be burned. TMA provides the following guidance when destroying medical records:

    - Maintain records scheduled for destruction in a secure location to guard against inappropriate access until the destruction is complete.
    - Whether you shred the records yourself in your office or hire a record destruction company, create a permanent record destruction log, individually listing all medical records with the following information:
    --- Patient name and medical record number (or other identifier);
    --- Date of destruction, combined with a notation that the record was destroyed in accordance with the retention policy; and
    --- Signature of staff person performing the destruction, or if you are using a record destruction company, the name of the company and signature(s) of individuals witnessing the destruction. (Add signatures after the destruction has been completed.)
    If an outside company is used,
    -- First, obtain a current Business Associate Agreement with the destruction company.
    -- Make sure the destruction contract specifies the method of destruction and time to elapse between acquisition and destruction.
    -- Establish safeguards for confidentiality.
    -- Follow the record destruction company's protocol for carrying out the actual destruction.
    -- Obtain a certificate of destruction from the company and file it with your log.
    -- Obtain a statement that records were destroyed in the normal course of business.
    -- Indemnify your practice from loss due to unauthorized disclosure.

    Please refer to TMA's guidance How to Delete Data-For Real for advice on destroying electronic storage securely, and the US Health & Human Services Guidance to Render Unsecured Protected Health Information Unusable, Unreadable, or Indecipherable to Unauthorized Individuals, "consistent with NIST (National Institute of Technology & Standards) Special Publication 800-88, Guidelines for Media Sanitation such that the PHI cannot be retrieved."

    Records Management, Storage and Retrieval Resources
    For a list of Records Management/Storage & Retrieval Companies in the Houston area...  (Please note that neither the Harris County Medical Society or the Texas Medical Association endorses any of these companies; this list is being provided for reference only.)

    Also, please refer to our Buyers Guide Web page under "Custodian of Records," "Document Destruction," and "Document Scanning & Imaging."