(August 17, 2010): Last week, the Centers for Medicare and Medicaid Services (CMS) issued MLM Matters SE1022, titled "Medical Record Retention and Media Formats for Medical Records" directed toward physicians, non-physician practitioners, suppliers, and other health care providers submitting claims to Medicare contractors for services provided to Medicare beneficiaries. As CMS acknowledged, medical record retention requirements are generally governed by State law and can vary from State to State. Nevertheless, under the administrative simplification rules of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (HIPAA), "covered entities," such as physicians and other health care providers billing Medicare, must retain required medical records for a period of "six years from the date of its creation or the date when it last was in effect, whichever is later."
I. HIPAA Preemption Impact on Medical Record Retention Requirements:
Importantly, HIPAA requirements preempt State laws if the State laws require a shorter medical records retention period. It is essential that providers check their applicable State requirements. Should your State laws apply a longer retention period, it will apply. As MLM Matters SE1022 further notes:
The Centers for Medicare & Medicaid Services (CMS) requires records of providers submitting cost reports to be retained in their original or legally reproduced form for a period of at least 5 years after the closure of the cost report. This requirement is available at 42 CFR 482.24[b].
CMS requires Medicare managed care program providers to retain records for 10 years. This requirement is available at 42 CFR 422.504 [d][iii].
Finally, the guidance points out that the Medicare program "does not have requirements for the media formats for medical records. However, the medical record needs to be in its original form or in a legally reproduced form, which may be electronic, so that medical records may be reviewed and audited by authorized entities. Providers must have a medical record system that ensures that the record may be accessed and retrieved promptly."
II. Final Comments on Medical Record Retention:
Medical record retention issues can be quite complicated, especially when a patient is a minor and / or when a health care provider is being audited or under investigation by the government or a Medicare contractor. In such a situation, document destruction activities are typically curtailed until the external review is resolved. In light of these considerations, it is strongly recommended that you work with your legal counsel to better ensure that your practice is meeting its document retention obligations. As a final point, all Medicare providers and suppliers should have medical record retention policies and procedures incorporated into your Compliance Program.
Robert W. Liles, J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker's health lawyers have extensive experience representing health care providers and suppliers in connection with Medicare, Medicaid and private payor audits. Our attorneys can also you with the development and implementation of an effective Compliance Program. Should you have questions regarding these issues, you may can call Liles Parker for a complimentary consultation. 1 (800) 475-1906.