When can we throw records away, and how long are we required to keep patient records? Also, should we charge patients for copying records? If so, what's appropriate?

For the answer to these questions, I contacted respected attorney Jeff Tonner. Mr. Tonner has extensive experience with dental law in Arizona, and is a wealth of information on this subject.
According to Mr. Tonner, nothing in the statutes tells us how long an office must keep records. Each year, he interviews insurance companies he works with and asks them, "Have you ever had a claim come up that is longer than ten years between the work being done and the claim being made?" Invariably, the answer is no.
So, ten years is a good rule of thumb. The ten years begins after the patient was last treated. If the patient were to return after ten years or so, the records would be so old that it would be advisable, and sensible, to start fresh with new records. For all intents and purposes, one really couldn't rely on material that dated. After ten years, one would probably be safe in destroying the records. However, keep in mind that for minors, the statute of limitations doesn't begin until two years after the minor becomes an adult, age 18.
Mr. Tonner also relayed an interesting story regarding the only instance where a dentist was asked to produce records more than ten years old. The case involved an orthodontist who treated the patient as a minor. Some issues came up relating to Temporomandibular Joint Dysfunction when the patient was in his 30's. When asked to produce the records, the dentist went up in his attic, and lo and behold, actually found the records! And, he also had the right stuff written down to help solve the case in his favor!

Records Request:
In my experience, many offices handle the question regarding how to handle requests for records incorrectly. There is a correct way, and the answer is here!
Follow these guidelines when you are asked to duplicate records, or when you are requesting records yourself:

  • Make sure the request is not ignored. Ethically, an oral demand should not be ignored; legally, an oral demand may be ignored.
  • When requesting records, prepare a short and simple form stating that a request is being made, and the name and address of the intended designee.
  • Even though some states do not require written authorization, with the initiation of HIPAA, written authorization is advisable. Allow for a signature line on the office's records request/release form.
  • NEVER GIVE UP ORIGINAL RECORDS. Mr. Tonner clearly states, "The dentist owns the chart, but the patient controls access to it."
  • "Records" may include many items, including the entire record. Always designate what records are being requested. For example when a person asks for their records, try to clarify: "By 'Records', do you mean your current x-rays?" If the answer is, "Yes", then copy only the x-rays. If a person requests the entire record, then the entire record must be duplicated. In addition, if a person asks for multiple copies of the entire record, then the request must be fulfilled, and one may charge an appropriate fee for each copy made.
  • How much is "reasonable charge"? A good guideline is to consider the hourly cost in wages of the individual's time plus the hard costs (paper, x-ray film, etc.) to duplicate radiographs and any other records; say $20. It is not recommended to withhold records due to an unpaid balance or for payment to duplicate records. This may promote a board complaint.
  • When may one charge for duplicating records? In Arizona, the Dental Practice Act states a charge can be assessed; but it does not clearly state that payment must be made in advance {A.R.S. § 32-1264}. On the other hand, the Medical Records Act {A.R.S. § 12-2291} states a charge cannot be levied against a patient when a healthcare provider requests records on behalf of the patient from another healthcare provider. This is the basis of the majority of the confusion in the dental field. When a patient requests his/her records be copied and transferred then yes, a charge may be assessed; not when another healthcare provider makes the request.
  • Essentially, there is a conflict with the Dental Practice Act that says you can charge; it just doesn't specify when. The Medical Records Act says you can charge in advance. To be safe, inform the patient who is asking for their records that there is a charge, you will prepare a statement for the duplication costs, and duplicate their records per their request. But remember, if another healthcare provider requests records on behalf of the patient, then a charge cannot be assessed to the patient or the party requesting records.
  • An event that happens often is when a patient changes doctors, and asks the new office to request records from the previous office. The new office contacts the previous office, asks for records on behalf of the new patient. The previous office cannot charge for duplicating records, and must honor the request for records to be duplicated and transferred to the new office. Another event that occurs is when a patient calls their current office, states they are changing doctors, for whatever reason, and would like their records transferred to their new office. At this time, a fee may be charged to duplicate records and made available to the new doctor or to the patient to take to their new office.

Following is an example of the kind of text to use on a form to request records from another office on the patient's behalf:
"We have been asked by {Patient Name} to contact you and formally request his/her records sent to our office. Below you will find his/her signature authorizing the duplication and release of his/her records.
Please honor this request at your earliest convenience."

Here is an example of what to send to a patient who requests records from their current office:
"Please make copies of my original records and have them delivered directly to me at the following address."
"…send them to {Dr.'s Name/Practice Name} at the following address.
Enclosed is my payment of $20.
Thank you"

Handle the duplication of patient records intelligently by knowing the rules and regulations. In addition, be sensible with this issue; patients ask for records for a variety of different reasons. It may be that someday, circumstances may change, and they may feel the need to change dentists again. The way in which this issue is handled will either remain a positive experience in their mind, or a thorn in their side. You choose.

For more information on this issue, reference the Dental Practice Act {A.R.S. § 32-1264}, the Medical Records Act {A.R.S. § 12-2291, 2295}, and attorney Jeffrey J. Tonner at 602-266-6060. The Arizona State Board of Dental Examiner's (BODEX) website provides information online at www.azdentalboard.org.