Guidelines for the Retention of Medical Records in Nevada
It is axiomatic that all patients are eventually released from a healthcare provider’s care. Following a patient’s discharge (or death), providers may wonder how long they should retain a patient’s medical records. There is no law requiring medical records to be destroyed after a certain amount of time has passed following a patient’s discharge. If storage space and means permit, healthcare providers are certainly permitted to store and maintain all of their patient records. However, for most providers, storage space is becoming increasingly limited and costly, which necessitates medical record retention policies that are both legally and practically adequate and cost-efficient.
In formulating medical record retention policies, providers should consider: 1) Nevada laws governing the retention of certain medical records; 2) federal laws relevant to the retention of medical records; 3) Nevada’s statute of limitations relating to medical malpractice claims; and 4) other practical considerations relating to the retention of medical records.
Nevada Law Governing Medical Record Retention
Nevada law requires providers of healthcare to maintain patient records for five (5) years following the date on which the patient record was created. This applies to all providers of healthcare, including licensed physicians, licensed dentists, licensed nurses, registered physical therapists, licensed psychologists, chiropractors, medical laboratory directors or technicians, and licensed hospitals and their employees.
In complying with Nevada’s five-year medical record retention requirement, patient records “may be retained in written form, or by microfilm or any other recognized form of size reduction, including, without limitation, microfiche, computer disc, magnetic tape and optical disc, which does not adversely affect their use…” Further, physicians who have performed an abortion are required to maintain certain medical records relating to the abortion for at least five (5) years after it is performed.
Federal Law Relevant to Medical Record Retention Policies
In addition to Nevada laws governing the retention of medical records by providers of healthcare, there are also a number of federal laws that may impact a
See NRS § 629.051.
NRS 442.256 (providing that a “physician who performs an abortion shall maintain a record of it for at least 5 years after it is performed. The record must contain: 1. The written consent of the woman; 2. A statement of the information which was provided to the woman pursuant to NRS 442.253; and 3. A description of efforts to give any notice required by NRS 442.255.”).
provider’s obligation to retain a patient’s medical records. Principal among these include the following:
Medicare and Medicaid
As a condition of a hospital’s participation in the Medicare and Medicaid program, hospitals are generally required to retain the medical records of Medicare and Medicaid patients in their original or legally reproduced format for a period of at least five (5) years. Further, Medicare and Medicaid regulations require Critical Access Hospitals to retain medical records for at least six (6) years from the date of the last entry, or longer if the records may be needed in any pending proceeding.
The Health Insurance Portability and Accountability Act (HIPAA)
Contrary to popular belief, HIPAA does not mandate that medical records be retained for a certain period of time. Rather, HIPAA requires healthcare providers to retain only certain types of HIPAA documentation for a period of six (6) years from the date of its creation. Documentation that must be retained under HIPAA include a healthcare provider’s policies and procedures relating to HIPAA compliance, and communications or items explicitly required to be in writing or documented under HIPAA. Specifically, these documents include signed authorizations for disclosure of Protected Health Information, and responses to a patient who wants to either amend or correct a record, among other documents. Further, HIPAA generally provides patients with a right of access to inspect and obtain a copy of their medical records for as long as those records are maintained by the healthcare provider.
Mammography Quality Standards Act (MQSA)
MQSA requires a facility performing a mammogram to maintain the patient’s mammography films and reports for at least five (5) years, or at least ten (10) years if no subsequent mammogram of the patient is performed at the facility.
False Claims Act and the Federal Civil Statute of Limitations
The False Claims Act imposes penalties on persons who present false or fraudulent claims for payment to the United States Government. A false claim that is subject to penalties under the False Claim Act may involve a person who knowingly bills Medicare for services that were not provided. The False Claim Act allows claims to be brought up to six years after the act giving rise to the violation was committed, or three
42 C.F.R. § 482.24(b)(1).
42 C.F.R. § 485.638(c).
See 45 C.F.R. § 164.530(j)(2).
See 45 C.F.R. § 164.530(j)(1).
See 45 C.F.R. 164.508(b)(6); 45 C.F.R. 164.526(f).
See 45 C.F.R. § 164.524(a).
21 C.F.R. 900.12(c)(4).
31 U.S.C. § 3729.
(3) years after the acts material to the false claim are known or reasonably should have been known by the United States Government, but in no event more than ten (10) years after the date on which the violation is committed, whichever occurs last. Further, the federal statute of limitations for civil penalties under a Federal Health Care Program is six (6) years.
Retention of Medical Records for Purposes of Medical Malpractice Lawsuits
A patient’s medical records have often been described as the single most important piece of evidence in a medical malpractice action. Without medical records, a healthcare provider may not be able to establish that the treatment provided to plaintiff met the standard of care. Additionally, providers should be aware that there are severe penalties for destroying or spoliating medical records that are relevant to potential or pending litigation.
Nevada’s statute of limitations generally requires that medical malpractice actions be brought within three (3) years from the date of injury, or one (1) year after the plaintiff should have reasonably discovered the injury, whichever occurs first. However, merely maintaining medical records until the statute of limitations has passed is inadequate for a number of reasons.
First, the statute of limitations is merely an affirmative defense which may lead to the dismissal of plaintiff’s claims after the suit is filed. However, it does not preclude a suit from being filed against the healthcare provider in the first place.
Second, there are certain exceptions that toll the time under the statute of limitations. For example, Nevada’s statute of limitations regarding medical malpractice claims is extended to the extent that a provider has concealed any negligent act upon which a plaintiff’s action is based.
Third, Nevada’s statute of limitations does not apply to many types of suits filed against healthcare providers. Nevada’s statute of limitations relating to medical malpractice actions applies to claims based upon the professional negligence of a healthcare provider. Under Nevada’s medical malpractice statute, professional negligence is defined as “a negligent act or omission to act by a provider of health care in the rendering of professional services.” Consequently, the statute of limitations does not apply to actions not based upon professional negligence, including actions involving intentional torts, criminal misconduct, fraud and other suits where a patient’s
31 U.S.C. § 3731(b).
See 42 C.F.R. § 1003.132; see also 42 U.S.C. § 1320a-7a(c)(1).
See e.g., SHARON BARANOSKI & ELIZABETH A. AYELLO, WOUND CARE ESSENTIALS: PRACTICE
PRINCIPLES 36 (Lippincott Williams & Wilkins 2d Ed. 2008); WILLIAM H. ROACH, MEDICAL RECORDS AND
THE LAW 46 (Jones & Bartlett 3d Ed. 2003).
medical records may be vital to the provider’s defense. Further, Nevada’s statute of limitations typically does not apply to claims made pursuant to federal law, such as claims asserting Medicare billing error against the provider.
Fourth, healthcare providers may want to retain patient records longer than the statute of limitations for tax purposes in order to provide documentation of billing, services rendered, and monies received in case of a tax audit.
Finally, providers should be aware that Nevada has authorized special statute of limitation periods that allow minors to sue for sexual abuse which occurred prior to the plaintiff reaching the age of majority. Suits involving sexual abuse of a minor may be filed within ten (10) years after the plaintiff reaches the age of eighteen (18), or within ten (10) years after the plaintiff discovers, or reasonably should have discovered, that the injury was caused by sexual abuse, whichever occurs later. Providers of healthcare who routinely treat infants and minors should be especially mindful of these provisions when formulating medical record retention policies.
Other Practical Considerations
HMOs, PPOs or other healthcare networks may require participating providers to maintain medical records for a certain period of time. Providers should review any provider contracts they have to determine any contractual obligations they have as a participating provider. With regard to the retention of patient medical records received from other healthcare providers, providers are generally not required to maintain such records if they are not pertinent to the specialty consult or necessary in treating the patient’s condition.
In light of exceptions to the statute of limitations and the numerous types of claims against healthcare providers where the statute does not apply, a provider’s best course of action is to maintain records far beyond Nevada’s five-year statute of limitations. Therefore, the best approach is to retain the medical records of adult patients for at least ten (10) years after the patient has been discharged, and retain medical records of minors until ten years after the minor has reached the age of 18. Further, it is vital that every health care provider implement a clear and consistently applied medical record retention policy in order to reduce the risk of penalties for destroying or spoliating records that are relevant to potential or pending litigation.
See NRS 11.215.
See Medical Mutual Insurance Company of Maine, Medical Record Retention Recommendations for
Physician Office Practices, Aug. 2008, http://www.medicalmutual.com/risk/tips/16.php?sP=1.
This article is for general informational purposes only. It is not intended as professional counsel and should not be used as such. As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel. Your use of the information contained in this article does not create an attorney-client relationship between you and the author or Bailey Kennedy, LLP.