Under state and federal law, physicians have a legal duty to properly maintain patient medical records and provide them to patients as requested. The Texas Medical Board (TMB) also has established ethical rules that govern physicians, some of which pertain to medical records. Failing to follow these laws or rules can lead to disciplinary action by TMB, which can have severe consequences and long-lasting implications for their medical licenses and careers. If you are facing disciplinary action concerning your handling of medical records, you should contact a Texas medical license defense lawyer for assistance with your case. Together, we can work to protect your interests and determine the best strategy for safeguarding your license.
Contents of Medical Records
22 Tex. Admin. Code §165.1(a) governs the contents of medical records that all Texas physicians must maintain. Regardless of the medium physicians choose, they must maintain an adequate medical record for each patient that is complete, contemporaneous, and legible. A patient’s medical records should contain the following elements; However, the TMB acknowledges that these elements may vary according to the types of services, place of service, and the patient’s status:
- Documentation of each encounter with the patient, including:
- The reason for the encounter and relevant history, physical examination findings, and prior diagnostic test results;
- An assessment, clinical impression, or diagnosis;
- A plan for care (including discharge plan if appropriate); and
- The date and identity of the observer.
- Past and present diagnoses should be accessible to the treating and/or consulting physician.
- The rationale for and results of diagnostic and other ancillary services.
- The patient’s progress, including response to treatment, change in diagnosis, and any noncompliancenoncompliance.
- Relevant risk factors.
- The written plan for care, including, when appropriate:
- Treatments and medications (prescriptions and samples) specifying the amount, frequency, number of refills, and dosage;
- Any referrals and consultations;
- Patient/family education; and
- Specific instructions for follow-up.
- Any written consent for treatment or surgery requested from the patient/family.
- A summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made.
- Billing codes, including CPT and ICD-9-CM codes, as reported on health insurance claim forms or billing statements.
- Salient records received from another physician or health care provider involved in the care or treatment of the patient.
Additionally, all non-biographical populated fields in a patient’s electronic medical record must contain accurate information based on actual findings, assessments, evaluations, diagnostics, or assessments as documented by the physician. Furthermore, suppose the physician makes any amendment, supplementation, change, or correction in a medical record that is not contemporaneous with the act or observation. In that case, they must note it by indicating the time, date, and the fact that there has been an amendment, supplementation, change, or correction.
Maintaining Medical Records
22 Tex. Admin. Code §165.1(b) outlines the duties of physicians to maintain patients’ medical records. Physicians must maintain patients’ medical records for a minimum of seven years from the anniversary date of the last treatment by the physician. If the patient was younger than age 18 at the time of their last treatment, then the physician must maintain their medical records until the patient reaches age 21 or seven years from the anniversary date of the last treatment by the physician, whichever is longer.
Special rules apply to records from forensic medical examinations and those related to civil, criminal, and administrative proceedings. Under 22 Tex. Admin. Code §165.6, special rules also exist for maintaining medical records related to the performance of an abortion on a minor in a medical emergency.
Physicians may transfer ownership of medical records to another licensed physician or group of physicians only after providing appropriate notice as the law requires. The receiving physician must maintain the records according to the rules outlined in this code section. The destruction of any medical records must occur in a manner that ensures patient confidentiality.
Federal and States Rules on Confidentiality of Medical Records: HIPAA and TMRPA
While Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects patients’ personal health information (PHI), the Texas Medical Records Privacy Act (TMRPA) is its state law counterpart. These laws penalize doctors and other medical professionals who violate them by disclosing PHI, including inappropriate access to medical records.
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Confidentiality of Physician-Patient Communications under the Medical Practice Act
Under Tex. Occ. Code §159.022, all communications between a physician and a patient concerning any professional services are confidential and privileged, including “a record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician.” However, §159.003 outlines some exceptions to the confidentiality of patient records in court and administrative proceedings, as does §159.004 in some other contexts, including disclosure to government agencies when required by law and to law enforcement personnel when there is a probability of imminent physical injury to the patient, the physician, or another person.
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Release of Medical Records to Patients
22 Tex. Admin. Code §165.2 requires physicians to provide copies of medical records, billing records, or summaries of those records to patients upon their written request. The physician must provide the records within 15 business days of receiving the written request for the records, along with payment of the reasonable fees for providing the information, which may not exceed $25 for the first 20 pages and $.50 per page for every copy after that. If provided in an electronic format, a reasonable fee is no more than $25 for 500 pages or less and $50 for more than 500 pages. Other fees for additional materials may apply, and the rules for accessing diagnostic imaging studies are outlined in 22 Tex. Admin. Code §165.3.
However, a physician may not charge a fee for medical records requested by a patient, former patient, or authorized representative of a patient in connection with a benefits or assistance claim based on the patient’s disability. Additionally, a physician may not withhold medical records from patients due to past-due medical bills.
The doctor is not required to release the records to the patient if the doctor determines that release of the records would harm the patient’s physical, mental, or emotional health. However, the physician may deny the request for records. In that case, they must provide a written denial to the patient within 15 days that states the reason for the denial and how the patient can file a complaint with the federal Department of Health and Human Services (if subject to HIPAA) and the TMB.
Defend Yourself Against Disciplinary Proceedings Involving Your Medical License
Do not allow allegations about your maintenance and use of patient medical records to affect your career adversely. Losing your medical license can be devastating to your career. If you are facing the loss of your professional license, we can help you take the steps necessary to challenge the allegations against you in your disciplinary proceedings. Contact a medical license defense attorney at Bertolino LLP, for advice today. Make an appointment by calling (512) 515-9518 or contact us online to see how we can help.