After Transition to Electronic Health Records (EHR): What to Do with Paper Files?

The use of electronic health records (EHR) in the physician office provides many benefits, including quick access to accurate, complete information about patients at the point of care; legible, complete documentation; reduction of medical errors; privacy and security of health information, secure sharing of electronic information; and streamlining of coding and billing. Without a doubt, the process of transitioning from paper records to EHR can be challenging and stressful, but the rewards are worthwhile.

Once implementation is accomplished, another advantage of EHR is the consolidation of records within small electronic devices, avoiding the need to maintain ever-expanding paper files that take up valuable office space.  However, as physician offices implement EHR, uncertainty often follows about what to do with old paper records.

The ICS has advised that general record retention requirements are not uniformly spelled out in any single law or rule, and physicians need to refer to multiple sources to create policies that suit their individual practices.  This advice also applies to EHR and the transition from paper when deciding if and how to keep paper records.  The ICS recommends that physicians formulate a retention policy based on a review of multiple factors, as outlined in this article.

Initial Decisions in the Transition

There are different ways to incorporate EHR into a health care practice.  A major decision at the outset is whether old records will be scanned into each EHR so that all of a patient’s information is contained in the EHR, or whether the practice will simply start using EHR from a certain date forward so that a patient’s record will contain a hybrid of EHR and paper records.  A third option is to re-enter old records into coded EHR format so that the patient record will consist of new EHR, plus a “keyed-in” electronic version of old paper records, and the actual old paper records.  Each of these options may result in different retention requirements.

No Paper Files

Although there is more “front end” work in scanning all existing records into the EHR, this process allows a health care practice to make the best and simplest use of EHR, because the entire record is contained in EHR.  This avoids the need to refer to both paper and EHR and affords all the advantages of EHR.  In most cases (if certain conditions are met), the practice may then destroy the paper records.  According to Medicare, when imaging used to replace paper documents is identical to the paper, the paper may be destroyed if certain conditions are met (detailed below).  Another reward for scanning full records into EHR:  patient files no longer take up office space, and the practice may choose to keep electronic records indefinitely, with no need to periodically review and shred.

When a practice opts to maintain a combination of old paper files and EHR or to re-enter old information into the EHR (instead of scanning), the paper records should be maintained according to usual retention guidelines.  Re-keyed information is not identical to the original paper records, so the corresponding originals must be retained.

Fully Scanned EHR – Conditions for Disposing of Paper Records – Medicare Guidance

“Disposition For Medicare Records that are Imaged/Scanned” is covered in Medicare’s General Information, Eligibility, and Entitlement Manual (Chapter 7 – Contract Administrative Requirements 30.30.1.)  This section discusses specific requirements for imaging that will be sufficient to replace paper documents and permit their destruction.  In addition to the scanned image being identical, the provider must have in place a “quality assurance procedure” to make sure records are scanned correctly.  The Manual provides the following sample quality assurance procedure:

Standard Procedures for Document Imaging Quality Assurance 

 1. The staff member(s) performing the actual scan will:

a. Observe that all pages successfully pass through the scanner and that image displayed on the imaging software preview screen appear accurate.

b. Affix a sticker marked “Scanned” to the top page, write the current date on the sticker and place on top of a pile of scanned material.

2. The staff member(s) responsible for these records will have immediate access to the images, from their desktops, using the imaging software. They will have 30 days to use and review the images. If any problem is detected, the paper will be retrieved and rescanned. After 30 days, the paper copies are subject to proper disposal.

Quality control would include making sure that all notes get included and are legible in the scanned version.  For example, if original notes are handwritten in a margin or elsewhere, they must appear in the scan.  If the above procedures are followed, the corresponding paper records may be destroyed, according to federal guidelines.

Paper Records—Factors to Consider

The following are factors to consider when deciding whether and how long to keep paper medical records, whether your records are contained solely on paper or only partially.  Note that, even if your office properly scans all historical records into the EHR, some of the factors below may warrant saving paper records in certain situations:

State Law—Illinois Medical Practice Act —

Neither the Illinois Medical Practice Act nor the Rules specify the number of years that office medical records must be retained. The Medical Practice Act simply states that licensees must create records — it is a violation for a licensee to “fail[ ] to establish and maintain records of patient care and treatment as required by this law” — but the Act is silent as to how long records must be kept.  Therefore, licensees must look to other laws, including statutes of limitation on medical malpractice and personal injury claims, as guidelines for record retention.

State Law – Statutes of Limitation in Malpractice and Personal Injury Suits —

An important factor to consider in developing a retention policy is protection against malpractice suits. A practitioner should retain records for a period that would cover the longest possible statute of limitations for medical malpractice. The Illinois statutes of limitation impose a malpractice filing deadline of 2 years from when the malpractice is discovered, but in no event no longer than 4 years from the date of the wrongdoing, in a case involving an adult. In the case of a child, the suit must be filed within 8 years from the date of the wrongdoing, but not later than when the child reaches age 22.

Other laws to be considered include the statute of limitations for ordinary personal injury claims. In Illinois, that deadline is two years from the date of injury for an adult, or, in the case of a minor, two years after his or her 18th birthday.

Federal Law – False Claims Act —

The False Claims Act makes it a crime for any person or organization to knowingly file a false claim regarding any federal health care program.  The statute of limitations under this law is 10 years from when fraud and abuse is alleged to have been committed.  Providers who treat Medicare patients should consider keeping records for 10 years because these records would become critical in defending a False Claims Act prosecution.

Medicare —

The Centers for Medicare and Medicaid Services (CMS) has stated that it does not require that medical records be maintained in a particular format (paper vs. EHR).  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.

HIPAA Rules —

The Rules for the Health Insurance Portability and Accountability Act (“HIPAA”) require that records be maintained for 6 years from the date of their creation and that records of any disclosure be maintained for 6 years from the disclosure date.

In consideration of the above laws and regulations, the ICS’ general recommendation for record retention is 10 years from the date of the last encounter for adult patients. For children, the recommendation is 10 years from the date of the last encounter, or when the child reaches 20 years of age, whichever is longer. This standard accommodates the medical malpractice statutes of limitation and exceeds the requirement in the HIPAA Rules.  Of course, this is a general recommendation and may be superseded by some of the other factors discussed below.

Professional Liability Insurance Provisions —

Providers should review their malpractice insurance policies.  Insurers may have specific record retention requirements for conversion to EHR.  If your insurance contains a provision that requires records to be kept for longer or in a different format than what is required under other guidelines, the insurance terms will need to be incorporated into your office policy.

Network Provider Agreements – Managed Care –

Providers should also review their managed care agreements to determine whether the agreements require a specific duration or format of record retention.  Office policy should conform to the most stringent of the participating provider agreements.

Litigation – Laws Regarding Destruction of Evidence. 

Of course, parties to ongoing litigation have a duty not to destroy evidence in the case. However, state and federal courts have recognized that parties may have a duty to preserve potentially relevant evidence before the commencement of a lawsuit if it is reasonably foreseeable that a lawsuit will be filed.  Therefore, physicians who know that a case may be filed again them should take steps to preserve the relevant records, even when the records may be scheduled for destruction under the office’s established retention policy.  If the physician has no notice of possible litigation, records may be destroyed according to the practice’s usual policy.

Conclusion

No “one size fits all” exists when determining how long to keep original paper medical records. CMS has said that if records are converted to EHR in images that are identical to the originals, providers do not need to keep the paper records at all.  If the patient record is only partially electronic or has been re-keyed from the original, physicians should apply the regular guidelines for paper records, keeping in mind statutes of limitation, insurance, and network provider requirements.   Additionally, paper versions should be retained for any records for which there is notice of possible litigation or a fraud enforcement action, or as may be required under malpractice insurance and provider agreements.  Finally, the physician office should establish a retention policy that includes the quality control procedures outlined by CMS.