Take Our Medical Records Quiz

Questions abound when it comes to managing medical records because they are subject to many rules and regulations. Can you answer these commonly asked questions about medical records? Answers are below.

1. True or false: You should treat medical records you receive from another physician as part of your practice’s medical record.
2. True or false: You may charge for the time it takes to search for and retrieve copies of medical records.
3. Does a physician have to provide a patient copies of requested medical records if the patient fails to pay the copying fee?  
4. Does a physician have to provide a patient copies of requested medical records if the patient has a past-due account with the physician for medical care? 
5. True or false: You may release medical records of a deceased patient to any family member without prior authorization.
6. May a physician allow adult children to see the medical records of their elderly parents if they are helping to care for them?
7. How long must a practice hold onto a patient’s medical records?
8. When a patient requests his or her records, can the physician choose to provide a summary of the records rather than copies?
9. When a patient requests his or her records, can the physician choose the medium in which to release the records?
10. How long does a physician have to respond to a request for medical records?

Answers

1. True. You should maintain as part of the patient’s medical records salient records received from another physician or a health care provider involved in the care or treatment of the patient. 22 Texas Administrative Code §165.1(a)(12)
2. False. 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. It may include, as applicable, the cost of copying and labor, such a compiling, extracting, scanning, burning onto media, and distributing media; cost of supplies for creating paper copy or electronic media; postage; and preparing a summary of the records when appropriate. 22 Texas Administrative Code §165.2(e)(5)
3. Generally, Texas Medical Board regulations permit physicians to retain records until receiving payment of a copy fee, subject to some exceptions. However, you must inform the requesting party, in writing within 10 calendar days of receiving the request, of the need for payment; if you fail to do this, you can’t withhold the records. Note also that you cannot withhold records requested by a U.S.- or Canada-licensed physician for the purposes of providing the patient emergency or acute medical care. 22 Texas Administrative Code §165.2(f)-(g)
4. Yes. The Texas Medical Board has prohibited practices from using requests for copies as a method of collecting on overdue accounts. Therefore, when a patient has a past due account for treatment previously rendered to the patient and that patient pays for the medical record copies, you must provide the records to the patient. 22 Texas Administrative Code §165.2(h).  
5. False. If the patient is deceased, you may disclose confidential information only to the patient’s personal representative. Texas Health and Safety Code § 611.004(a)(4)A “personal representative” is someone specifically named as having the authority, when appointed as such by the probate court, to transact business on the part of the deceased person’s estate.
6. It is inappropriate to show children their parent’s medical records without the parent signing a release form. The parent could obtain a copy of his or her own records and share them with a child. But you cannot give the records to the child without the parent’s permission if the parent is considered competent. Texas Health and Safety Code §611.004(A)(4)
7. Texas Medical Board rules specify you must keep an adequate medical record for each patient for a minimum of seven years from the anniversary date of last treatment by the physician. If a patient was younger than 18 years of age when you last treated him or her, keep the medical records until the patient reaches age 21, or for seven years from the date of last treatment, whichever is longer. Do not destroy medical records that relate to any civil, criminal, or administrative proceeding if you know the proceeding has not been finally resolved. In addition, follow any federal or state regulation that requires you to retain medical records longer than the above periods. 22 Texas Administrative Code §§165.1-165.3 Your commercial payer contracts also may have retention rules you need to follow.
8. Most likely not. Under Texas law, the physician is free to provide either copies or a summary or narrative of those records; even if a patient insists on copies, the physician is free to provide a summary over the patient’s objections. Tex. Occ. Code §159.006(a). However, if the physician must comply with the HIPAA privacy standards, then the choice of copies versus summary, even in Texas, is the patient’s choice. The physician should not prepare a summary without the patient’s permission and an agreed-upon price for the report. 45 CFR §164.524(c)(2)
9. Under Texas law, copies may be released on paper or using any other appropriate medium (e.g., microfiche, microfilm, computer disk or other electronic storage medium), so long as both the physician and the patient (or person/entity who is to receive the records) agree on the medium. Texas Occupations Code §159.007 However, if the physician is covered under HIPAA and already has the medical records in an electronic format, then the patient has a right to obtain them from the physician in an electronic format. Additionally, if the patient chooses, he or she may direct the physician to transmit the electronic copy directly to a designated entity or person, provided that the choice is “clear, conspicuous and specific.” HITECH §13405(e)(1)
10. When you receive a proper written request for release of records and a reasonable copy fee, you have 15 business days to respond. Texas Occupations Code §159.006(d)

Help From TMA

Many gray areas surround the handling of medical records. These TMA
legal papers  examine some of those areas:

• 21st Century Cures Act (Mar. 2021)
• Patient Access and Consent to the Release of Medical Records (Aug. 2021)
• Retention of Medical Records  (Aug. 2017)

Note that the legal papers provide general legal information; because your circumstances may vary, you should contact your own retained counsel for specific legal advice and representation.

For additional information, visit the TMA Medical Records resource center, or find answers about medical records on the TMA Knowledge Center’s members-only FAQ page at www.texmed.org/findanswers/. TMA members also can contact the knowledge center directly for answers at (800) 880-7955 or knowledge[at]texmed[dot]org.

In addition, TMA’s Policies and Procedures: A Guide for Medical Practices contains policies regarding medical records management you can customize for your practice. And a course in the TMA Education Center delves into details: Managing Your Medical Records (publication).

NOTICE: The Texas Medical Association provides this information with the express understanding that (1) no attorney-client relationship exists, (2) neither TMA nor its attorneys are engaged in providing legal advice, and (3) the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate, and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought. Any legal forms are only provided for the use of physicians in consultation with their attorneys.

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