by Barry F. Levin, Esq. and Philip M. Bogart, Esq.
During the last few years, many types of businesses have realized the importance of enacting formal records retention and destruction policies. Like any other business, it is crucial for a dental practice to implement a formal records retention policy.
What is a records retention policy?
A records retention policy is the official procedure for the practice with respect to retention and destruction of its documents, files, and dental records. A well-crafted records retention policy explicitly explains how to organize, store, and destroy patient charts, dental records, e-mails, contracts, documents, and any other tangible or electronic files.
Why should a dental practice adopt a records retention policy?
Dental practices are required by law to maintain adequate patient records. Failure to do so can expose the practice to significant risks and liabilities. In addition, the Health Insurance Portability and Accountability Act (HIPAA), the Federal Insurance Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA), and many other laws and regulations require retaining records for varying periods of time.
Moreover, a dental practice’s records may be used in a court of law in connection with the prosecution and/or defense of malpractice claims or other civil lawsuits.
On the other hand, it may be beneficial to destroy unnecessary documents as soon as legally permitted to reduce the risk of them being discovered and used against the practice in a lawsuit. If a dental practice retains all of its extraneous e-mails and correspondence, outdated or irrelevant messages may surface during pre-trial discovery and may be taken out of context. Additionally, if a dental office is involved in litigation, the practice’s compliance with its retention policy will justify the destruction of documents (as long as the documents were destroyed pursuant to the policy, and not after notice of a lawsuit or investigation).
If these reasons are not enough, a records retention policy is important to streamline daily operations. Failure to adopt a structured method of maintaining and managing records can impair the practice’s productivity and create a sense of disorder and lack of professionalism.
How should a practice adopt a records retention policy?
Unfortunately, there is no “one-size-fits-all” records retention formula. An effective policy should be custom-tailored for the practice with the participation of the office manager, the person who maintains the computer system, and the practice’s legal counsel.
Essential elements of an effective records retention policy
Although this list is not exhaustive by any means, the American Dental Association has suggested the following elements be considered when crafting a records retention policy:
- Act as if all documents, records, or e-mails will be read in a courtroom.
- Stop destruction efforts immediately upon notice of litigation or investigation.
- Respond promptly and properly to requests for information.
- Maintain the confidentiality of all records, whether electronic or hard copy.
- Shred or delete confidential documents, records, and files at the appropriate time.
1. Act as if all documents, records, or e-mails will be read in a courtroom — In the unfortunate event of a malpractice suit against a dental practice, dental records become the single most important source of evidence.
Make sure that all records contain strictly objective information. Do not include anything that could seem improper in any context. Be specific and remember that less is usually more.
In addition, do not make the mistake of thinking e-mails are private. E-mails are one of the first items attorneys request in the event of litigation against a dental practice. Assume that all e-mails, records, and documents will be magnified and displayed to an entire courtroom, and proceed accordingly. Additionally, counsel your employees appropriately.
2. Stop destruction efforts immediately upon notice of litigation or investigation — A well-crafted records retention policy will require that destruction be suspended as soon as the practice becomes aware that its records may be relevant to litigation or government investigation. In such a scenario, the dental practice.
3. Respond promptly and properly to requests for information — Dental practices may be required by law to produce dental records or other documents during a lawsuit or government investigation. If the dental practice receives a subpoena, court order, or administrative agency request, legal counsel should be contacted immediately. Make copies of any documents that are produced in order to create a record of production, as well as to track the return of the documents. Have your counsel review all records prior to making them available to outsiders.
Having an effective records retention policy will ensure that a dental practice is not caught off-guard in the event of litigation or government investigation.
4. Maintain the confidentiality of all records, whether electronic or hard copy — Store hard copies of confidential documents in a secure location. Limit access to only necessary persons. Use password- pprotected log in mechanisms for computers that store sensitive information.
E-mail correspondence with patients can be very helpful, but it poses significant legal risks to a dental practice. Patient confidentiality can be compromised because it is difficult to confirm the identity of the author of an e-mail, and because e-mails can be misdirected to third parties. It is absolutely vital to inform patients of the risks of using e-mail correspondence. After explaining these risks, make sure each patient signs a consent form before using e-mail correspondence. Include a disclaimer on every e-mail correspondence that includes instructions for parties who mistakenly receive confidential e-mails.
5. Shred or delete confidential documents, records, and files — Confidential documents must be shredded, preferably by a professional shredding service. Leaving documents in trashcans or recycling bins risks a breach of confidentiality, so make sure that shredding becomes the normal process for the disposal of sensitive information.
Be aware that simply deleting e-mails or electronic documents is not sufficient. The raw data file will remain on the hard drive and only the reference to the specific file will be deleted. This means the raw data can be retrieved later, which may breach confidentiality. Work with an information technology specialist to make sure that confidential electronic files are completely wiped clean from the computer’s memory.
As the disposal of radiographs presents health risks and requires special care, be sure to contact a specialist to determine the proper method of destroying X-rays.
Finally, obtain certificates of destruction from the party destroying the records. Any contract with an outside company to destroy documents or records should include a provision for a certificate of destruction.
For further information on these topics, read “Dental Records,” produced by the Council on Dental Practice, Division of Legal Affairs, available online at the American Dental Association Web site.
Find a trusted advisor
In addition to the items discussed in this article, many other important factors must be considered before adopting a records retention policy. This makes it imperative to work with a trusted legal advisor who understands the applicable laws (including minimum retention periods for certain records), as well as the day-to-day challenges of a dental practice, in order to ensure that the records retention policy is legitimate, effective, efficient, comprehensive, and an overall asset to the dental practice.
Barry F. Levin is a partner and vice chair of Saul Ewing LLP’s Business Department.
Philip M. Bogart is an associate in the business department in Saul Ewing LLP’s Baltimore office. They represent dentists, and the business entities in which clinicians practice, in all aspects of the dental practice structure including the structuring, negotiation, documentation, and implementation of associateships or employee arrangements, partnership arrangements, acquisitions, sales, and mergers of mature practices.
