Medical Records Retention Guidelines

Creating and maintaining accurate and complete medical records are a fundamental part of professional practice, and are integral to the delivery of high quality medical care to patients in this state. West Virginia Board of Medicine licensees are required to maintain legible and coherent medical records that justify the course of treatment in a manner that makes the records accessible to the patient, licensee and/or subsequent health provider for as long as necessary to facilitate patients’ current and prospective health care needs.

Maintaining patient medical records for an appropriate length of time is important for several reasons:

• Patient medical records are an important source of current health information when care is transferred;
• Historical medical records can provide critical information and historical context for current medical treatment and assessments; and
• Well-developed and carefully documented medical records may provide crucial evidence for licensees who are faced with malpractice allegations.

West Virginia is one of many states that does not have clear statutory guidelines for how long a physician must retain patient medical records. To determine the appropriate length of time to maintain records, the Board recommends that licensees develop and implement a medical record retention and production policy in concert with legal counsel. Appropriate policies should address:

• The categories of documents to be retained (i.e. entire electronic health record (“EHR”), test results, patient encounter notes, immunization records; billing records);
• The specific time frame for medical record retention;
• A procedure for providing notification of the licensee’s retention policy to all patients; and
• Information concerning how to request copies of patient medical records and all associated fees.

Record retention policies should take into consideration a variety of factors appropriate to the licensee’s practice, including:

• Patient need/practice specialty: The lodestar for record retention should be patient health and safety. If patient care memorialized in a medical record is likely to be critical to the patient’s future health care needs, err on the side of preserving the record. Certain specialties, including but not limited to oncology and hematology, should factor these concerns into the standard retention period.
• Patient age/capacity: At a minimum, records for minor patients, including immunization records, should be maintained at least until the statute of limitations passes for all claims that may arise from the care. Records for patients with disabilities which may affect cognition or legal capacity should be maintained for twenty years to ensure availability of medical records should a legal dispute arise.
• Payer or contract requirements: Some payers, including CMS, require that records be retained for a certain period after the last entry into the record. The average minimum requirement is five years; however, some Medicare/Medicaid audits and/or actions can occur up to ten years after treatment and/or billing has occurred.
• Statutory or Regulatory Requirements: Several state and federal regulations and rules may affect medical record retention periods. For example, HIPAA requires the retention of records for a minimum of six years after the last date of treatment. The Board’s legislative rules implementing the professional practice requirements of the West Virginia Medical Practice Act authorize the Board to impose discipline upon licensees who do not maintain complete medical records for at least three years after the last date of treatment.
• Statute of Limitations for Medical Professional Liability: Medical records should always be maintained beyond all applicable statutes of limitation which may apply to claims arising from the treatment provided.
• Pending Claims: All records related to pending claims should be retained until all aspects of the litigation are concluded, irrespective of the age of the medical record.

At a minimum, the Board recommends that licensees retain records for at least 10 years after the last entry into the record or last date of service, whichever is longer.

West Virginia Code §16-29-1 sets forth a patient’s right to access his or her own medical records, and West Virginia Code §16-29-2 establishes the cost-based fees a practitioner may charge a patient for copies of medical records. Licensees should take care to review this law and ensure that their practices and policies comply with these legal requirements.

Electronic health records can help alleviate some storage issues associated with traditional paper medical records. However, EHRs raise a number of other concerns that a physician must be aware of, including privacy issues and record ownership. When using EHR, a physician should ensure that appropriate security safeguards are in place to protect a patient’s protected health information. Likewise, a physician should ensure that he or she has the ability to access patient EHRs, even if the contract with the EHR company ends or is not renewed.

Licensees should have an operational understanding of the medical records archiving and retrieval processes for their practice. Office staff should also be knowledgeable of such processes, and be aware of their responsibility in the transfer or provision of medical records to patients.