Question

The legal requirements governing the content, retention, and destruction of health information most closely resemble a patchwork quilt: various federal and state laws and regulations address issues central to these health information matters.

No one reliable scheme exists that addresses all of the issues contained in this chapter.

For example, to guarantee compliance with all the requirements, health information managers must consider

(1) quasi-legal requirements such as accrediting and institutional standards,

(2) professional guidelines,

(3) state law, and

(4) federal law.

Health information managers must then incorporate these legal and quasi legal requirements into policy, balancing these factors against the function and uses of health information and practical concerns, such as storage constraints, and maintaining the privacy and security of health data.

To prepare yourself for the day when you might be responsible for implementing policies for your facility, do some research to learn about your state's requirements concerning record retention and record destruction. A good source of information is your state’s Department of Health website. For background on what should be included in a retention and destruction policy/schedule for health records, please review the AHIMA document "Retention and Destruction of Health Information (2013 update)". In addition, you can begin with accessing HealthIT.gov's retention schedule, then look up the information for your state.(Indiana)

In a discussion board post:

• Summarize the rules governing medical records in your state.

• Identify factors that you think influence the record retention policies in your state, as well as differences for destruction of HIV and alcohol/drug abuse records.

• Identify whether record retention policies in your state reference the privacy and security of health data. If not, please explain if your state policy should reference privacy and security, and why.

• Explain what role a statute of limitations plays in a record retention policy and the factors that influence the policy.

Answer 1

*American medical records are considered highly sensitive and protected. They are available only to those who need to know and/or have been given consent. Medical ethics rules along with federal and state laws govern the privacy protection of medical records, and determine whether doctors may share your medical information without your permission.

Florida medical records laws lay out a patient's right to keep sensitive medical records confidential, including records of abortions and venereal disease. A Florida patient generally must be given written consent to the release of medical records. Florida physicians, meanwhile, must report cases of tuberculosis and STDs to the state Department of Health.

Florida state law, the federal law is known as the Health Insurance Portability and Accountability Act (HIPAA), normally requires doctors and their staff to keep your medical records confidential, unless you allow the doctor's office to disclose them. There are, however, three general exceptions:

• Emergency: If you have suffered a traumatic injury and cannot make medical decisions for yourself, a doctor may discuss your medical information with a spouse or family member;
• Part of a Court Case: If you bring a personal injury lawsuit or a worker’s compensation claim, a doctor may testify about your health or injuries;
• Government Reporting: Doctors are required to report certain information (births, deaths, and some communicable diseases) to the government for public health interests.

*In determining public records retention requirements, four values must be considered to ensure that the records will fulfill their reason for creation and maintenance: administrative, legal, fiscal and historical.

A retention schedule describing the records and setting the minimum retention period is required for each record series. A record series, as defined in Rule 1B-24, Florida Administrative Code, is “a group of related public records arranged under a single filing arrangement or kept together as a unit (physically or intellectually) because they consist of the same form, relate to the same subject or function, result from the same activity, document a specific type of transaction, or have some other relationship arising from their creation, receipt, or use.

The records retention schedule establishes officially the minimum length of time that the record series must be retained. This retention applies to the agency’s record (master) copy of the records – those public records specifically designated by the custodian as the official record. The retention period for duplicates – copies of records that are not the official record of an agency – is always “Retain until obsolete, superseded, or administrative value is lost” (“OSA”) unless otherwise specified.

People in certain positions or occupations to report cases of suspected child abuse or neglect to the relevant child welfare authorities. In 1986, the Federal regulations were amended to permit substance abuse programs to comply with such laws. Today, the Federal regulations "do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities."This means that program staff may make reports to local child abuse hotlines and even confirm the reports in writing. However, the regulations "continue to apply to the original alcohol or drug abuse patient records maintained by the program including their disclosure and use for civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect." This means that while a program may make State-mandated child abuse reports, it must still protect patient records from subsequent disclosures (even as against local child welfare investigators) and, absent patient consent or court order, may not permit them to be used in child abuse proceedings against the patient.

*CHILD ABUSE OR NEGLECT

This record series consists of information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission constituting child abuse, neglect, abandonment, and endangerment, including information derived by laboratory tests, reports of investigators or informants, or any type of surveillance (Section 119.011(3)(b), Florida Statutes, Public Records; Definitions). The series may also contain, but is not limited to, fingerprints and/or palm prints and print classification of the person arrested; FBI history number; state identification number; original and supplemental arrest reports and records; arrest affidavit; booking records; jail commitment records; first appearance records; copies of warrants; photographs; narrative describing case or offense; correspondence; the disposition of the case; bond and fine information for the person to be released from jail; commitment orders; court orders; record of offender's incarceration; Miranda rights form; family history; releasing orders; date of release; reason for release; court dispositions; and medical information. Retention is pursuant to Statute of Limitations, Section 95.11(7), Florida Statutes, For Intentional Torts Based on Abuse. Retention may need to be extended under conditions established by Section 775.15(12)(b) – Section 775.15(16), Florida Statutes. See also “CRIMINAL INTELLIGENCE INFORMATION RECORDS” and other “CRIMINAL INVESTIGATIVE RECORDS” items.

RETENTION: 7 anniversary years after the age of majority, or 4 anniversary years after the injured person leaves the dependency of the abuser, or 4 anniversary years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. Retention may need to be extended under conditions established by Section 775.15(12)(b) – Section 775.15(16), Florida Statutes.

*CONFIDENTIAL INFORMANT FILES Item #199 This record series consists of information pertaining to the identity of confidential informants. The series may include, but is not limited to, the informant’s name, address, telephone number, race, sex, height, hair and eye color, social security number, date of birth, criminal history report, fingerprint card, photographs, and names of family members. If the informant is a paid informant, the series may also include records of payments to the informant. For information provided by confidential informants, use “CRIMINAL INTELLIGENCE INFORMATION RECORDS” or the applicable “CRIMINAL INVESTIGATIVE RECORDS” item. RETENTION: 5 fiscal years following the last contact with informant.

*-Section 257.36(6), Florida Statutes, states that “A public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division.” This means that all records, regardless of access provisions, must be scheduled before disposition can occur (see Sections 119.07- 119.0714, Florida Statutes, regarding access provisions). Agencies must identify an appropriate general records schedule or individual records schedule for any records being disposed of. If an appropriate retention schedule for the records does not exist, one must be established by following the procedures listed above for individual records schedules.

*STATUTORY AUTHORITY

The general records schedule is issued by the Department of State’s Division of Library and Information Services, in accordance with the statutory provisions of Chapters 119 and 257, Florida Statutes. Chapter 119, Florida Statutes, defines the terms “public records,” “custodian of public records” and “agency,” as well as the fundamental process by which disposition of public records is authorized under law. Chapter 257, Florida Statutes, establishes the Florida State Archives and the Records and Information Management Program under the direction of the Division of Library and Information Services and specifically provides for a system for the scheduling and disposition of public records. Chapter 257 also authorizes the Division to establish and coordinate standards, procedures and techniques for efficient and economical records creation and recordkeeping, and it requires all agencies to appoint a Records Management Liaison Officer (RMLO).