The Texas Medical Board (TMB) licenses and regulates physicians and other medical professionals. Part of those duties involve receiving and investigating complaints about these medical professionals, including complaints related to medical records. Physicians and other medical professionals are subject to certain rules that govern medical records that they must be aware of to avoid disciplinary action against them.
Obtaining experienced legal counsel to represent your interests in disciplinary proceedings before the TMB can be a substantial step in reaching a positive outcome in your case. Therefore, if you are facing disciplinary investigations, complaints, or formal proceedings before the Board, you should consult a medical license defense attorney for help.
Requirements for Maintaining Medical Records
22 Tex. Admin. Code §165.1(a) outlined the mandatory contents of medical records for Texas physicians. While physicians can maintain medical records in written or electronic formats, they must maintain a complete, contemporaneous, and legible medical record of each of their patients. Although the nature and amount of physician work varies based on the type of services provided, the place of service, and patient’s status, a patient’s medical records generally should contain the following elements:
- 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;
- The rationale for and results of diagnostic and other ancillary services;
- The patient’s progress, including response to treatment, change in diagnosis, and any noncompliance;
- 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; and
- 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, if the physician makes any amendment, supplementation, change, or correction in a medical record that is not contemporaneous with the act or observation, they must specifically document it. Amendments, supplementations, changes, or corrections should be labeled as such and contain the date and time.
Maintaining Medical Records
22 Tex. Admin. Code §165.1(b) sets forth maintenance requirements for patients’ medical records. Physicians must maintain a patient’s medical records at least seven years from the date of the last treatment by the physician. If the patient was younger than age 18 on that date, then the physician must maintain their medical records until the patient reaches age 21 or seven years from the last treatment date by the physician, whichever is longer.
Some other federal or state statutes or regulations may apply that require physicians to maintain a patient’s medical records for more than the periods listed above.
Special rules apply to records from forensic medical examinations and those related to civil, criminal, and administrative proceedings. 22 Tex. Admin. Code §153.003 outlines the requirements for keeping records from forensic medical examinations. Physicians may only destroy medical records related to civil, criminal, and administrative proceedings only after they know that the legal proceedings are over.
Furthermore, 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. More specifically, physicians must maintain these records until five years after the patient reaches the age of majority or seven years after the date that they created the medical records, whichever is later.
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.
Releasing Medical Records to Patients
Under 22 Tex. Admin. Code §165.2, physicians must provide copies of medical records, billing records, or summaries of those records to patients if they submit a written release of information form under §159.005. However, the physician 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. If a physician denies a request for records, they must provide a written denial to the patient within 15 days. The written denial must state the reason for the denial and explain how the patient can file a complaint with the federal Department of Health and Human Services (if subject to HIPAA) and the TMB.
When they receive a written release of information signed by the patient, the physician must provide the requested 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.
In some cases, a physician may not charge a fee for medical records requested by a patient, former patient, or authorized representative of a patient. No fee is permissible in connection with a benefits or assistance claim based on the patient’s disability. Physicians also may not withhold medical records from patients due to past-due medical bills.
We Can Advocate for Your Interests in TMB Disciplinary Proceedings
The medical license defense lawyers of Bertolino LLP can help guide you through the disciplinary complaint process. Regardless of the allegations you face, we are here to represent your interests and work to minimize the negative effects of a complaint on your medical professional license and career. We can help resolve the case against you and maintain your licensure or certification. Call us today at (512) 980-3751 to reach the offices of Bertolino LLP or contact us online.
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