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Medical and Dental Record Retention

Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

The COVID-19 pandemic and the resulting increase in patient telehealth services have highlighted the importance of retaining complete and accurate records.

Retaining well-maintained patient records helps medical and dental professionals ensure continuity of care and protect against any future professional liability claims. The availability of accurate records also provides protection against licensing board complaints and peer review inquiries and can help when responding to investigations by governmental compliance agencies. The potential for billing audits by the Centers for Medicare and Medicaid Services or commercial third-party payers provides further motivation to create—and store—complete documentation.

The following information can guide providers in developing record retention policies.

Basis for Keeping Medical and Dental Records

The most important reason for keeping medical and dental records is to provide information on a patient’s care to other healthcare professionals. An accurate record of an individual’s presenting complaints, signs, and symptoms derived from a careful physical examination, any differential diagnoses, and the treatment plan helps to optimize patient well-being and promote more effective continuity of care.

Patient records also serve other vital functions. For example, billing audits require clear documentation demonstrating medical or dental necessity and the nature and scope of the services provided.

Another major rationale is that a well-documented record increases support for the provider’s defense in the event of a malpractice action. Entries made in the record at or near the time of the event are regarded as highly reliable evidence in subsequent judicial procedures. The record and progress notes—key evidence in a professional liability action—are critical to helping refresh the provider’s recollections of events that might have occurred years earlier and to establishing facts at a time when no conflict or other motivation influenced the circumstances at issue.

Without the patient’s record, a medical or dental professional might not be able to show that the treatment was appropriate and that it met the standard of care. Simply relying on the practitioner’s testimony of general habit and practice to show that the standard of care was met—without supporting documentation to establish the treatment that was rendered—often fails to convince a jury that the treatment the patient received was consistent with professional standards.

Medical and dental records are also important in establishing the quality of care rendered in the event of a professional licensing board or peer review inquiry. Patient complaints are often based on an individual’s mistaken recollection of events or on a failure to understand the course of treatment or adverse consequences involved in the dispute. With access to patient records, frivolous allegations may be readily resolved—frequently before a formal administrative process is initiated.

Federal Law, State Law, and Case Law

Federal laws impose mandatory record retention requirements on medical facilities and medical and dental practices. The Medicare Conditions of Participation, for example, require hospitals to retain records for five years (six years for critical access hospitals),1 whereas OSHA requires an employer to retain records for 30 years for employees who have been exposed to toxic substances and harmful agents.2

Federal legislation such as HIPAA and HITECH have also added new requirements for medical and dental records. HIPAA privacy regulations, for example, require that documents created in compliance with the Privacy Rule, such as policies, procedures, and accountings of disclosures, be retained for six years from when the document was created,3 which follows the federal statute of limitations for civil penalties.4

The healthcare professions have primarily been regulated by the states rather than by a federal oversight agency. As a result, record retention laws and regulations differ from state to state, so it is important to check and follow state requirements.

Record retention policies should not be based solely on the state statute of limitations. This is because case law in various jurisdictions may extend the allowable time for the patient to bring a malpractice action. An example of this situation is when a patient could not have discovered that the injuries were caused by wrongdoing within the statutory timeframe.

Contracted healthcare plans can also affect the length of time records must be retained. Your attorney, state licensing board, or professional association may provide specific information about state requirements.

Board and Association Policies and Recommendations

When state or federal laws are silent on record retention, professional licensing boards may be able to provide policies or recommendations on how long a provider should keep records.

For example, the Colorado Medical Board Policy 40-07 recommends retaining medical records for a minimum of seven years after the last date of treatment for an adult and for seven years after a minor has reached the age of majority, or age 25. In California, where no statutory requirement exists, the California Medical Association concluded that, while a retention period of at least 10 years may be sufficient, all medical records should be retained indefinitely or, in the alternative, for 25 years.5

The Doctors Company Recommendations

Once a record has been destroyed, it is difficult—if not impossible—to defend a case. We encourage medical and dental professionals to consult with their legal counsel regarding how the law in the jurisdictions relevant to their practice has been interpreted by the judicial system.

You must follow your state’s specific guidelines or laws. Where no statutory requirement exists, The Doctors Company recommends the following for retaining medical and dental records:

  • Adult patients, 10 years from the date the patient was last seen.
  • Minor patients, 28 years from the date of birth.
  • Deceased patients, five years from the date of death.

Check any signed managed care agreements or contracted healthcare plans to ensure compliance with the record retention requirements of those agreements. For example, Medicare managed care plans require providers to maintain records for 10 years.

Patient records, whether paper or electronic, must be maintained in a HIPAA-compliant format. If using a commercial service, the records should be stored with a reputable document storage company. Many companies offer alternative methods for paper document management, such as electronic scanning and storage, and may offer storage of previous electronic records when software formats change. Storing closed or archived records at a residence or on a home computer puts records at risk of damage from fire, flood (or other weather-related disasters), vermin, loss due to theft, or unauthorized access.

If a provider chooses to destroy clinical records after the required retention period, confidentiality must not be compromised. Use a record destruction service that guarantees a method of destroying records that does not allow further access to the information. Records that are destroyed should be listed on a log with the date of destruction.

What Records Should You Retain?

Retain all records that reflect the clinical care provided to a patient, including provider notes, nurses’ notes, diagnostic testing, medication lists, photos, videos, x-ray films, ECG recordings, fetal monitoring strips, and/or dental models/casts. Additionally, records from other providers that are directly related to your care and are maintained as a regular part of your chart should be kept for the same period that you retain your own records. This is especially true if you have relied on any of the previous records or information when making clinical decisions.

Review patient bills for any reference to care provided. For example, review a bill to determine if it shows a limited examination or a complete examination with diagnostic tests obtained or requested. If the billing document shows that care was provided, it may be in your best interest to keep the bill for as long as you retain the record. Otherwise, retain the bill for the same length of time as other business records and in accordance with federal and state income tax requirements.

Storing patient records for the recommended time can generate a financial expense for the provider or practice. Given the importance of records in ensuring continuity of care and defending malpractice actions, however, it is vital to make sure that records remain available.


References

  1. 42 CFR § 482.24(b)(1) and 42 CFR § 485.638(c).
  2. 29 CFR § 1910.1020(d)(1).
  3. 45 CFR § 164.530(j)(2).
  4. 42 CFR Part 1003.132
  5. Retention of Medical Records, Document #4005, CMA On-Call, org.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J12991 07/21

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