Seven Legal Errors Practices Make When Handling Medical Records

Several times a month I receive calls from physicians related to medical record management. Of particular concern is when and how to disclose patient health records. Consider the following statements which many practices assume, incorrectly, to be true:

1. A noncustodial parent has no right to access a minor’s record. False.
It’s never fun to be in the middle of a pediatric office “divorce war” between a noncustodial parent who wants copies of medical records, and a custodial parent who wants to prevent such a request. Unless a court order dictates otherwise (or there is some state-specific law on the issue) a noncustodial parent still maintains parental rights allowing access to the child’s records.

2. Physicians do not have to provide patients access to their entire medical record. False (with exceptions).
Typically, a patient is entitled to access the entire contents of his medical record, including the physician’s notes, lab and test results, and notes from other physicians. This includes the physician’s progress notes, which must be provided as part of the medical record. Physicians have some discretion to not disclose certain mental health or other records if they believe the disclosure may be harmful to the patient or another. Additionally, some test results may be subject to state-specific or other federal laws regarding disclosure (i.e., HIV tests or those rolated to substance abuse/treatment).

3.HIPAA always controls disclosure of records. False.
HIPAA details a patient’s right to receive his or her medical records. In addition, most, if not all states maintain laws regarding disclosure of medical records. In the event HIPAA and state law conflict, HIPAA generally controls. If state law addresses an issue on which HIPAA is silent or does not conflict, physicians must comply with state law.

4. Physicians are not required to provide patients directly with a copy of their medical records. False.
I spoke to a physician who routinely refused to provide medical records directly to patients out of concern that the records could be used in malpractice lawsuits. Guess what? The physician was sued for failing to provide patients with copies of their medical records! Unless otherwise limited by law, a patient is entitled to a copy of his or her medical record and a physician may not refuse to provide the record directly to the patient in favor of forwarding to another provider.

5.Physicians can charge patients a flat fee for medical records. False.
This is one tradition that routinely gets physicians in trouble. Some states allow physicians to charge “handling” fees for medical records. HIPAA allows providers to charge a reasonable, cost-based fee for medical records (i.e., labor and supply costs of copying and postage), with a state’s per-page copy charge considered presumptively “reasonable.” HIPAA, which trumps state law, does not allow charging a “handling” fee for processing or retrieving medical records. 

6. Record requests can be honored without a patient’s signature. Sometimes False.
HIPAA generally allows for disclosure of medical records for “treatment, payment, or healthcare operations” absent a written request. However, most state laws require record requests to be in writing and signed by the patient. I recommend you always obtain a signed, written release in a nonemergency situation, whether required by law or not.

7.Record requests can be refused if the patient owes money to the practice. False.
There is no legal basis for refusing to turn over a patient’s medical record because he owes money to the practice. Every patient has the right to access his medical records under federal and most state laws. The only money that can be required are the copying fees mandated by law.

While keeping and transferring medical records is often routine, it’s not always done properly by physician practices. If you have been in practice for a while and have not reviewed your forms or policies lately, I recommend you do so. If you obtained your practice’s forms free online or from a friend and never thought about whether they were actually legally compliant, I suggest you review them to see whether they create, or protect, your practice from liability. If you have questions, consult a healthcare lawyer who can guide you accordingly.

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