The decision to close your medical practice is often stressful in and of itself. But that stress is compounded when physicians are confronted with the thousands of patient medical records they have to handle when winding down their practices. When searching for guidance on how long to keep the records, physicians must look to complex state laws, federal laws and medical board rules, which vary depending on the type of record. In Illinois, this process is made even more confusing because the state has no clear record retention rule for physicians after they close their doors.
Illinois law requires hospitals to maintain patient medical records for 10 years. But there is no similar law for physicians, forcing them to look to other laws, guidelines and regulations to determine the appropriate time period for physicians to retain patient medical records.
Medicaid and Medicare reimbursement rules require providers submitting cost reports to retain records for five years. The Centers for Medicare and Medicaid Services (CMS) requires managed care program providers of Medicare to retain records for 10 years.
The Health Insurance Portability and Accountability Act (HIPAA) does not specifically include medical retention requirements, but it does require that certain HIPAA-related documents be retained for a specific period of time. For example, a physician billing Medicare must retain the required records for six years from the date the document was created or six years from the date the policy was last in effect or revised. These documents include notices of privacy practices, business associate agreements and other HIPAA-related documents. If state laws require a shorter time period, the federal HIPAA requirements preempt state laws.
To add more complexity to the equation, the Internal Revenue Service (IRS) requires that certain documentation be retained for three to seven years to support some tax claims. Doctors must consider these IRS requirements for record retention in the event they have any tax claims in connection with their practices.
Moreover, the statute of limitations for bringing a medical malpractice claim in Illinois is typically two years from when the person knew of the injury and not more than four years in other cases. However, there are longer limits for bringing claims on behalf of minors or people with disabilities. The relevant malpractice statute of limitations should also be analyzed when physicians wind down their practices.
On top of these rules, medical malpractice insurance carriers may have different guidelines for maintaining patient medical records, which also must be observed.
Medical records must be maintained in a safe, secure location to satisfy HIPAA concerns. Many medical records are maintained electronically after a practice closes. Both physical and electronic approaches to record retention are acceptable, provided the records are secure, accessible and able to be transferred if necessary.
Doctors who sell their practices can avoid these requirements by negotiating the transfer of the medical records in the sales of their practices. By assigning medical records to the purchaser, the purchaser then bears the responsibility for their retention.
However, if a physician is closing his or her Illinois practice because of retirement or some other reason that does not involve the transfer of the medical records to another practice or entity, it is a best practice to maintain most medical records for at least 10 years after the last patient visit. While this may be a conservative method and every medical practice needs to be evaluated individually, physicians should take the “better safe than sorry” approach in the face of unclear Illinois law.
Jonna Eimer is a health care attorney.