22 TAC §§165.1, 165.2, 165.5
The Texas State Board of Medical Examiners proposes amendments
to §165.1, §165.2 and new 165.5, concerning Medical Records. The
amendments to §165.1 and §165.2 will clarify the definitions for
medical records and maintenance of records and add Health Insurance Portability
and Accountability Act (HIPAA) requirements. New §165.5 outlines the
requirements concerning transfer or disposal of medical records. Elsewhere
in this issue of the Texas Register, the Texas State Board of Medical Examiners
withdraws an amendment to §165.1. The amendment was previously published
in the November 7, 2003, issue of the
Texas Register
(27 TexReg 9670). The Texas State Board of Medical Examiners is withdrawing
the amendment and re-proposing it to include new amendments. The proposed
amendment to §165.1 is necessary to correct an error in subsection (b)(3).
Recently the Texas State Board of Medical Examiners adopted an amendment to §165.1
in the September 5, 2003, issue of the
Texas Register
(28 TexReg 7703). The amendment was adopted with changes to the proposed
text as published in the July 4, 2003, issue of the
Texas Register
(28 TexReg 5030). When the rule was adopted with changes,
the original amendment to subsection (b)(3) was inadvertently left out. The
subsection is being amended to read as follows:
A physician may destroy medical records that relate to any civil, criminal
or administrative proceeding only if the physician knows the proceeding has
been finally resolved.
Michele Shackelford, General Counsel, Texas State Board of Medical Examiners,
has determined that for the first five-year period the sections are in effect
there will be no fiscal implications to state or local government as a result
of enforcing the rules as proposed.
Ms. Shackelford also has determined that for each year of the first five
years the sections as proposed are in effect the public benefit anticipated
as a result of enforcing the sections will be an updated rules. There will
be no effect on small or micro businesses. There is no anticipated economic
cost to persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901,
Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendments and new rule are proposed under the authority
of the Occupations Code Annotated, §153.001, which provides the Texas
State Board of Medical Examiners to adopt rules and bylaws as necessary to:
govern its own proceedings; perform its duties; regulate the practice of medicine
in this state; and enforce this subtitle.
The following are affected by the proposed amendment: Tex. Occ. Code Ann., §§159.001,
159.002, 159.004, 159.005, 159.006, 159.0061, 159.007, 159.008.
§165.1.Medical Records.
(a)
Contents of Medical Record. Each licensed physician of
the board shall maintain an adequate medical record for each patient that
is complete, contemporaneous and legible. For purposes of this section, an
"adequate medical record" should meet the following standards:
(1)
The documentation of each patient encounter should include:
(A)
reason for the encounter and relevant history, physical
examination findings and prior diagnostic test results;
(B)
an assessment, clinical impression, or diagnosis;
(C)
plan for care (including discharge plan if appropriate);
and
(D)
the date and legible identity of the observer.
(2)
Past and present diagnoses should be accessible to the
treating and/or consulting physician.
(3)
The rationale for and results of diagnostic and other ancillary
services should be included in the medical record.
(4)
The patient's progress, including response to treatment,
change in diagnosis, and patient's non-compliance should be documented.
(5)
Relevant risk factors should be identified.
(6)
The written plan for care should include when appropriate:
(A)
treatments and medications (prescriptions and samples)
specifying amount, frequency, number of refills, and dosage;
(B)
any referrals and consultations;
(C)
patient/family education; and,
(D)
specific instructions for follow up.
(7)
Billing codes, including CPT and ICD-9-CM codes, reported
on health insurance claim forms or billing statements should be supported
by the documentation in the medical record.
(8)
Any amendment, supplementation, change, or correction in
a medical record not made contemporaneously with the act or observation shall
be noted by indicating the time and date of the amendment, supplementation,
change, or correction, and clearly indicating that there has been an amendment,
supplementation, change, or correction.
(9)
Records received from another
physician or health care provider involved in the care or treatment of the
patient shall be maintained as part of the patient's medical records.
(10)
[
(9)
] The board acknowledges that
the nature and amount of physician work and documentation varies by type of
services, place of service and the patient's status. Paragraphs (1)-
(10)
[
(8)
] of this subsection may be modified to account
for these variable circumstances in providing medical care.
(b)
Maintenance of Medical Records.
(1)
A licensed physician shall maintain adequate medical records
of a patient for a minimum of seven years from the anniversary date of the
date of last treatment by the physician.
(2)
If a patient was younger than 18 years of age when last
treated by the physician, the medical records of the patient shall be maintained
by the physician until the patient reaches age 21 or for seven years from
the date of last treatment, whichever is longer.
(3)
A physician may [
not
] destroy medical records
that relate to any civil, criminal or administrative proceeding only if the
physician knows the proceeding has [
not
] been finally resolved.
(4)
Physicians shall retain medical records for such longer
length of time than that imposed herein when mandated by other federal or
state statute or regulation.
(5)
Physicians may transfer ownership
of records to another licensed physician or group of physicians only if the
physician provides notice consistent with §165.5 of this chapter and
the physician who assumes ownership of the records maintains the records consistent
with this chapter.
(6)
Medical records may be owned
by a physician's employer, to include group practices, professional associations,
and non-profit health organizations, provided records are maintained by these
entities consistent with this chapter.
§165.2.Medical Record Release and Charges.
(a)
Release of Records Pursuant to Written Request.
As
required by the Medical Practice Act, §159.006, a physician shall furnish
copies of medical and/or billing records requested or a summary or narrative
of the records pursuant to a written release of the information as provided
by the Medical Practice Act, §159.005, except if the physician determines
that access to the information would be harmful to the physical, mental, or
emotional health of the patient. The physician may delete confidential information
about another patient or family member of the patient who has not consented
to the release.
If by the nature of the physician's practice, the physician
transmits health information in electronic form, the physician may be subject
to the Health Insurance Portability and Accountability Act (HIPAA) 45 C.F.R.
Parts 160-164. Unless otherwise provided under HIPAA, physicians subject to
HIPAA must permit the patient or an authorized representative access to inspect
medical and/or billing records and may not provide summaries in lieu of actual
copies unless the patient authorizes the summary and related charges.
(b)
Deadline for Release of Records.
The requested
copies of medical and/or billing records or a summary or narrative of the
records shall be furnished by the physician within 15 business days after
the date of
receipt of
the request and reasonable fees for furnishing
the information [
shall be paid by the patient or someone on behalf of
the patient
].
(c)
Denial of Requests for Records.
If the physician
denies the request for copies of medical and/or billing records or a summary
or narrative of the records, either in whole or in part, the physician shall
furnish the patient a written statement, signed and dated,
within 15
business days of receipt of the request
stating the reason for the denial
and how the patient can file a compliant with the federal Department of Health
and Human Services (if the physician is subject to HIPAA) and the Texas State
Board of Medical Examiners.
[
, and a
]
A
copy of
the statement denying the request shall be placed in the patient's medical
and/or billing records as appropriate.
(d)
Contents of Records.
For purposes of this section,
"medical records" shall include those records as defined in §165.1(a)
of this title (relating to Medical Records) and shall include copies of medical
records of other health care practitioners contained in the records of the
physician to whom a request for release of records has been made.
(e)
Allowable Charges.
(1)
The physician responding to a request for such
information shall be entitled to receive a reasonable
, cost-based
fee
for providing the requested information. A reasonable fee shall be a charge
of no more than $25 for the first twenty pages and
$.50
[
$.15
] per page for every copy thereafter. [
In addition, a reasonable
fee may include actual costs for mailing, shipping, or delivery.
] If
an affidavit is requested, certifying that the information is a true and correct
copy of the records, a reasonable fee of up to $15 may be charged for executing
the affidavit. A physician may charge separate fees for medical and billing
records requested.
The fee may not include costs associated with searching
for and retrieving the requested information.
(2)
A reasonable fee, shall include
only the cost of:
(A)
copying, including the labor and cost of supplies
for copying;
(B)
postage, when the individual has requested the
copy or summary be mailed; and
(C)
preparing a summary of the records when appropriate.
(f)
Emergency Requests.
The physician providing
copies of requested medical and/or billing records or a summary or a narrative
of such records shall be entitled to payment of a reasonable fee prior to
release of the information unless the information is requested by a licensed
Texas health care provider or a physician licensed by any state, territory,
or insular possession of the United States or any State or province of Canada
if requested for purposes of emergency or acute medical care.
(g)
Non-emergent Requests.
In the event
the physician receives a proper request for copies of medical and/or billing
records or a summary or narrative of the records for purposes other than for
emergency or acute medical care, the physician may retain the requested information
until payment is received. [
In the event
]
If
payment
is not routed with such a request, within ten calendar days from receiving
a request for the release of such records [
for reasons other than emergency
or acute medical care
], the physician shall notify the requesting party
in writing of the need for payment and may withhold the information until
payment of a reasonable fee is received. A copy of the letter regarding the
need for payment shall be made part of the patient's medical and/or billing
record as appropriate.
(h)
Improper Withholding for Past Due Accounts.
Medical and/or billing records requested pursuant to a proper request
for release may not be withheld from the patient, the patient's authorized
agent, or the patient's designated recipient for such records based on a past
due account for medical care or treatment previously rendered to the patient.
(i)
[
(g)
]
Subpoena Not Required.
A subpoena shall not be required for the release of medical and/or
billing records requested pursuant to a proper release for records under this
section and the Medical Practice Act, §159.006, made by a patient or
by the patient's guardian or other representative duly authorized to obtain
such records.
(j)
[
(h)
]
Billing Record Requests.
In response to a proper request for release of medical records, a physician
shall not be required to provide copies of billing records pertaining to medical
treatment of a patient unless specifically requested pursuant to the request
for release of medical records.
(k)
[
(i)
]
Prohibited Fees for Records
Released Related to Disability Claims.
The allowable charges as set
forth in this chapter shall be maximum amounts, and this chapter shall be
construed and applied so as to be consistent with lower fees or the prohibition
or absence of such fees as required by state statute or prevailing federal
law. In particular, under §161.202 of the Texas Health and Safety Code,
a physician may not charge a fee for a medical or mental health record requested
by a patient, former patient or authorized representative of the patient if
the request is related to a benefits or assistance claim based on the patient's
disability.
(l)
Applicable Federal Law. Whenever
federal law or applicable federal regulations affecting the release of patient
information are inconsistent with provisions of this section, the provisions
of federal law or federal regulations shall be controlling. Physicians are
responsible for ensuring that they are in compliance with federal law and
regulations including the Health Insurance Portability and Accountability
Act (HIPAA) 45 C.F.R. Parts 160-164.
§165.5.Transfer and Disposal of Medical Records.
(a)
Required Notification of Discontinuance of Practice. When
a physician retires, terminates employment or otherwise leaves a medical practice,
he or she is responsible for:
(1)
ensuring that patients receive reasonable notification
and are given the opportunity to obtain copies of their records or arrange
for the transfer of their medical records to another physician; and
(2)
notifying the board when they are terminating practice,
retiring, or relocating, and no longer available to patients, specifying who
has custodianship of the records, and how the medical records may be obtained.
(b)
Method of Notification.
(1)
When a physician retires, terminates employment, or otherwise
leaves a medical practice, he or she shall provide notice to patients of when
the physician intends to terminate the practice, retire or relocate, and will
no longer be available to patients, and offer patients the opportunity to
obtain a copy of their medical records.
(2)
Notification shall be accomplished by:
(A)
publishing notice in the newspaper of greatest general
circulation in each county in which the physician practices or practiced and
in a local newspaper that serves the immediate practice area;
(B)
placing written notice in the physician's office; and
(C)
sending letters to patients seen in the last two years
notifying them of discontinuance of practice.
(3)
A copy of the notice shall be submitted to the Board within
30 days from the date of termination, sale, or relocation of the practice.
(4)
Notices placed in the physician's office shall be placed
in a conspicuous location in or on the facade of the physician's office, a
sign, announcing the termination, sale, or relocation of the practice. The
sign shall be placed at least thirty days prior to the termination, sale or
relocation of practice and shall remain until the date of termination, sale
or relocation.
(c)
Prohibition Against. Interference.
(1)
Other licensed physicians remaining in the practice may
not prevent the departing physician from posting notice and the sign.
(2)
A physician or physician group should not withhold information
from a departing physician that is necessary for notification of patients.
(d)
Voluntary Surrender or Revocation of Physician's License.
(1)
Physicians who have voluntarily surrendered their licenses
in lieu of disciplinary action or have had their licenses revoked by the board
must notify their patients, consistent with subsection (b), within 30 days
of the effective date of the voluntary surrender or revocation.
(2)
Physicians who have voluntarily surrendered their licenses
in lieu of disciplinary action or have had their licenses revoked by the board
must obtain a custodian for their records to be approved by the board within
30 days of the effective date of the voluntary surrender or revocation.
(e)
Criminal Violation. A person who violates any provision
of this chapter is subject to criminal penalties pursuant to §165.151
of the Act.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308724
Donald W. Patrick, MD, JD
Executive Director
Texas State Board of Medical Examiners
Earliest possible date of adoption: February 1, 2004
For further information, please call: (512) 305-7016