Maintenance and retention of dental records

Dr. Bruce H. Seidberg discusses legal obligations of dentists for record keeping

Introduction

Dentists have both a professional and a legal obligation to maintain clinically relevant, accurate dental records of their patients. These records not only are essential for the continuity of treatment and evidence in the case of a dispute or litigation, but also obviate the need for assumptions regarding a dentist’s usual practice and for the transfer of records at the time of a sale of the practice or retirement of the provider. They chronologically document the care of a patient and enhance communication between the provider and other healthcare professionals.¹ One of the primary sources of information for litigation is the patients’ record, which can substantiate or diminish a claim.

Major considerations

Two major considerations determining the length of time records must be retained:

1. The legal requirements set forth by federal and state laws and individual state dental acts.
2. The allegations of civil actions alleging malpractice or breach of ²

Beyond patient care, the dental record is important because it may be used as evidence in court or in a regulatory action to establish the diagnostic analysis that was performed and what treatment was rendered to the patient. A quality dental record can be used to respond to a patient complaint, in defense of allegations of malpractice, or to justify treatment in case of an audit by a third-party payor.

An allegation of professional negligence can arise long after treatment has been completed, so ideally patient records should be maintained indefinitely. The actual length of time records must be kept is usually determined by a Statute of Limitation (SOL) law³ — a period of time established by statute, measured in years, within which a party may bring a lawsuit.⁴ The SOLs differ based on the cause of action and from state to state. For example, in New York State, professional negligence is 2½ years from the date an act occurred or failed to occur. The SOL for minors is extended to 2½ years past the age of 18 for all malpractice causes of action and for a maximum limit of 10 years from the last treatment date. These dates may vary for minors. It is important to understand the SOLs of the state in which a provider practices because they clearly define the length of time required to retain records of adults and minors.

Legal doctrines

Two doctrines can extend the Statute of Limitation (SOL): the Doctrine of Continuous Treatment and the Foreign Object Doctrine. The Continuous Treatment extends the SOL calculated from the last date of treatment of the specific matter about which the complaint is made. For example, if there is a procedure completed on tooth No. 3 on 6/1/15, then 2½ years for action would be 12/1/17. However if that procedure on tooth No. 3 is adjusted or altered on 12/1/15, the tolling of time for action would be extended 2½ years from 12/1/15 to 6/1/18. This doctrine applies to adults and is adjusted accordingly for minors.

The Foreign Object Doctrine extends the SOL 1 year from the date of discovery of the object or 1 year from the date a reasonably prudent person should have discovered the object. Foreign objects are unintentionally implanted in a body; i.e., a file used in an endodontic procedure or separated instrument, or a sponge used in a surgical procedure — not objects that are intentionally implanted such as prosthetic devices or dental implants. The Foreign Object Doctrine can be neutralized if the practitioner informs the patient about the event and documents the foreign object and conversation with the patient; i.e., an endodontic-separated instrument or excessive overextended endodontic filling/sealer material.

Clinical components

Dental records can be your best friend or your worst enemy. Dental records consist of many clinical components:

• patient demographics
• medical history
• dental history
• SOAP diagnostics
• radiographs
• photographs
• study models
• copies of all correspondence
• copies of prescriptions
• informed consent documentation
• referrals for specialty treatment
• treatment progress notes
• all financial records including, but not limited to, insurance^5,6,7,8,9

The patient record is the actual means of communication between the treating practitioner and other clinicians who may treat that patient in the future or with third parties. Patients are mobile and change providers for many reasons. The dental records must be accurate and contain enough information to allow another provider to understand the patient’s history of treatment in a prior office.¹⁰ The patient record may also be used as evidence in court or in a regulatory action to establish the diagnostic analysis that was performed, and what treatment was rendered to the patient. If documented properly, the record can successfully be used to respond to a patient complaint in defense of allegations of malpractice, or to justify treatment in case of an audit by a third-party payor. If the record is not accurately maintained, it will be your worst enemy. Accurate contemporaneous records are essential evidence in the case of a dispute or litigation.

Patients are legally entitled to access their complete dental records, and upon request, the dental office must provide the patient with a copy of all requested records in a timely fashion, usually within 10 working days. Providers are advised to provide only copies of requested documents and to retain all original ones.

Now that more records are in electronic format, the new Open Notes Rule (aka the Federal Information Blocking Rule) requires those reports to also be accessible.¹¹ The electronic technology challenges existing systems for ensuring confidentiality. The benefit of rapid accessibility to information must be balanced against the potential impact on confidentiality. Therefore, procedures must provide security against unauthorized access to stored and retained files.¹²

In the event there is a claim of lost records, or they are not made available either to the patient or third party in a litigation proceeding, the provider can be subject to an allegation claim of spoliation. A provider cannot single out one particular document or record and destroy it without looking guilty.¹³ Spoliation is a charge of purposely destroying or failure to preserve evidence that is necessary for understanding previous treatment or to aid in the defense of pending litigation.¹⁴ If the court determines that the records were destroyed purposely or prematurely, the court would more likely than not instruct the jury that had the records actually existed and had been produced in court, they would have proved facts favorable to the plaintiff. However, had the records been produced, the defense could have a more favorable opportunity to succeed.¹⁵

Practice structure

In a multipractitioner practice of any nature, the party responsible for maintaining the original patient record of all patients treated at that practice facility will be determined by the type of professional corporation (PC) or structure of the practice and the sales agreement. Unless the agreement specifies differently, the professional corporation (the buyer) would more likely than not be considered the owner of the dental records of the seller, whether paper or electronic and whether or not the new owner was involved in the patient’s treatment.

If the structure of practice is an office-sharing arrangement, and the dentist is an independent contractor rather than practice employee, each dentist would likely be considered as practicing under a separate legal entity, whether it be a PC, limited liability company, partnership, or solo proprietorship. Associate agreements, either for employee associates or independent contractors, should include language that specifies the associate’s access to patient charts and ownership issues.¹⁶ State laws may also specify the obligations of buyer and/or seller regarding record ownership, maintenance and/or retention in the event of a practice sale. If the practice has been sold, the sales agreement itself should spell out the terms for record retention and access, but it must be compliant with state laws.

When a dental practice is purchased, the existing dental records become proprietary to the new owner. According to most state regulations, the new dentist must maintain these records for a minimum of 5 years from the last dated entry, even if the new dentist did not provide the most recent services.

Record storage

Paper records can take up enormous amounts of space and require dry secure storage. They should not be left in public areas where nonauthorized personnel can gain access to them. To save space, records can be converted to microfilm (or microfiche), which takes up a lot less space than paper records. Another option is to opt for a records storage service. This method can be expensive over several years. In those dental offices that are considered covered entities, a HIPAA business associate agreement may be required if outsourcing records storage. Diagnostic and/or treatment casts may be photographed and stored in some cases. However, prior to completely converting records to one of these methods, a dentist should consult with his/her own attorney and professional liability insurance company.

Electronic storage is another option. Although time-consuming, paper records can be scanned to a hard drive, which should then have a backup made to another drive. One of the hard drives should be stored in a safe deposit box and the other available to stay with the originator. The benefit of this method is that a retired originator may choose to live in different parts of the country for periods of time but will always have accessibility to records if and when necessary. The keeper of records is always responsible for record confidentiality and integrity and provide protection from vulnerability to a hacker’s attack. State laws must be followed. State law can be quite specific on regulations related to healthcare record keeping.¹⁷

All dentists and healthcare providers should have record retention policies that are consistent with federal and state statutory and regulatory requirements and statutes of limitation. The policy should include, but not be limited to, protection of records against loss or destruction and laws of confidentiality. All employees should have knowledge of the policy to avoid the unintentional destruction of any patient record. The policy should include provisions for the maintenance and destruction, as appropriate, of patients’ records in the event of the dentist’s death. Patient records may be important documents in the event of a malpractice suit against the dentist’s estate after his/her death. The office’s professional liability insurance company will likely have recommendations about retention. Many liability insurance carriers recommend that patient records be kept for a minimum of 7 years from the date an adult patient was last seen, and 7 years after a minor patient’s last treatment or when the minor patient turns 21, whichever is longer. They also generally recommend a minimum of 7 years retention after retirement or practice closure.

In some states, proper maintenance and retention is a requirement of having a dental license.¹⁸ Accurate legible records are always required from a legal/risk management perspective.

The length of time for the retention of records for active clinical practices is the same, or similar, in each governing state as it is for the sale of a practice or retirement. There is a difference in retention time for adults’ records and those of minors. The best advice would be to keep original patient records forever,¹⁹ but that may not be feasible in some cases. Requirements vary from state to state for adults from a 2-year period to 7 years or longer. If they are not kept permanently, then a 10-year retention period for adults is highly recommended.²⁰ Minors are generally defined as age 18 and under, and their records must be kept until the age of 21 or as calculated by the Statute of Limitations of each state. In no event should records of a minor be destroyed in less than 7 years.²¹

Check current state statutes and regulations

Although most state statutes are in place, legislative bodies are known to have changed them from time to time. Therefore, always check the current status of your states’ regulations before making final decisions about retention or destruction of records. The following list includes examples of current state statutes and regulations that govern record retention

Illinois: 2.6 Dental records must be stored securely and safeguarded against loss or damage including a secure backup of electronic records. 2.7 Dental practitioners should be aware of local privacy laws that govern the retention of records, which require retention from 7-10 years. Dental records must be stored securely and safeguarded against loss or damage including a secure backup of electronic records.²²

California: The minimum retention time of patient records is 7 years only if the dentist ceases operation. Beyond that, California law does not specify the period of time that patient records must be maintained after the patient discontinues treatment.²³

Pennsylvania: A patient’s dental record must be maintained by a dentist for a minimum of 5 years from the date of the last dental entry.²⁴

New York: Professionals are required to maintain records for each patient that accurately reflect the evaluation and treatment of the patient according to section 29.2(a)(3) of the Rules of the Board of Regents. All patient records must be retained for at least 6 years, with the exception of records for minor patients, which must be maintained for at least 6 years and for 1 year after the minor patient reaches the age of 21. Dentists who retire or sell their practices must make provisions for records to be maintained and accessed, if requested. The obligation to maintain records is not changed by the retirement or sale of a practice by a dentist.²⁵

Texas: Dental licensee shall make, maintain, and keep adequate dental records for and upon each dental patient for reference, identification, and protection of the patient and the dentist. Records shall be kept for a period of not less than 5 years from the last date of treatment by the dentist. If a patient was younger than 18 years of age when last treated by the dentist, the records shall be maintained by the dentist until the patient reaches age 21 or for 5 years from the date of last treatment, whichever is longer.²⁶

Florida: A dentist shall maintain the written dental record for a period of at least 4 years from the date the patient was last examined or treated by the dentist. Malpractice or HIPPA laws may require a longer retention.²⁷

Ohio: Records should be retained “in line with NHS recommended Retention Schedule.” This states that general Dental Services records should be retained for a minimum period of 10 years from the date of discharge of the patient from the practice or when the patient was last seen.²⁸

Colorado: All patient records must be kept for 7 years after the patient’s last dental visit, or 7 years after the patient turns 18 for all pediatric patients.²⁹

Washington: A licensed dentist shall keep readily accessible patient records for at least 6 years from the date of the last treatment.³⁰

Tennessee: Dental records shall be retained for a period of not less than 7 years from the dentist’s or his supervisees’ last professional contact with the patient except for the following: Dental records for incompetent patients shall be retained indefinitely. Dental records of minors shall be retained for a period of not less than 1 year after the minor reaches the age of majority or 7 years from the date of the dentist’s last professional contact with the patient, whichever is longer. Notwithstanding the foregoing, no dental record involving services which are currently under dispute shall be destroyed until the dispute is resolved.³¹

Records retention

The American Medical Association (AMA) and American Medical Records Association (AMRA) recommend a 10-year retention period and the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) states that retention time should depend upon the need for using the records in continuing patient care and for legal, research, or educational purposes, and on law and regulations.³² The ADA states that retention of records following a patient’s last visit varies with state laws and  provisions of contracted dental benefit plans. The ADA recommends checking with your attorney, state dental board, or state dental association for specific requirements of your state.³³

In the sale of a practice or retirement, all patients of record must be notified of the provider’s intent to either transfer the records to a subsequent provider or how to access them after a certain date if necessary. Notification should be done by certified mail with signed returned receipt. A copy of notification should be kept in the patient’s record. Records cannot be transferred to another provider without the permission of the patient and without violating the laws of confidentiality. Unless the patient objects at the time of the notification, or within a reasonable time, confidentiality may be waived.³⁴  Patients must be given the opportunity to request copies of their records or to have them sent to a new provider; requests should be in writing. Some states, like Colorado, specify within their codes a specific format to follow for the notification: “When a dental office plans to dispose of records, affected patients must be notified by email, mail, or publication at least 60 days prior to destruction. Affected patients must have at least 30 days to claim their records, and these records must be provided at no charge. Notice by publication must be placed in both a major and community newspaper (one day per week for four consecutive weeks). The posting can be done either in print or online. HIPAA compliant destruction methods must be followed for both paper and electronic records.”³⁵

Patients can request a copy of their records for whatever purpose; i.e., personal use or transferring to another provider. The original provider must comply within a reasonable time, such as 10 working days; the request should be in writing and documented in the record. The provider should always keep the original records and only provide copies. It is legal to charge for the copying of records as most states have a set amount for copying pages. A reasonable charge can made for duplicating radiographs and models.^36,37 Unlike the scenario of the mobile patients requesting copies of their records for personal use or to have them sent elsewhere because of changing providers and who can be charged a fee determined by state law,^36,37 the patients cannot be charged when it is the provider initiating the request.

Records should not be destroyed any time prior to the federal or state law timeline, and it is highly recommended that they be kept for a period of time longer than any recommendation. When the decision is made to dispose of records, they should not be destroyed in a casual manner or by just delivering them to a local transfer station (dump). The most common way to ensure that records are completely destroyed safely is to shred them. Some practices choose to do this themselves, while others outsource the work to a professional shredding company. Keep in mind that just as with a storage company, you will need a business associate privacy agreement or a certificate of the dated shredding.

Because an allegation of professional negligence can arise long after treatment has been completed, the sale of an office, retirement, and even death, patient records should ideally be maintained indefinitely. That may be realistic but not practical in all cases. Providers are encouraged to be familiar with the dental practice act and the statutes of limitation and regulations of the state they practice within for the maintenance and retention of patient records policy prior to disposing of them.

Disclaimer: The material presented in this manuscript is for general information intended to provide helpful information for the reasons why records must be maintained, retained, and when and how to dispose of them. This is not intended to substitute for, or be interpreted, as actual legal advice. It is intended solely for the purpose to be used as suggestions to reduce and manage various risks in the practice of dentistry and medicine. Readers should communicate with their personal attorney and professional liability carrier for the actual legal advice pertaining to any legal dispute they may be involved in. Readers are encouraged to be familiar with the dental practice act, the statutes of limitation, and regulations of the state they practice within for the maintenance and retention of patient records policies prior to disposing of them.