Medical Records and the Law

Special Disclosure Concerns 341or remains the same after the ownership change. Patients who refuseconsent to transfer their records to the acquiring program or someother facility must withdraw from treatment. The original programthen may edit or destroy the records pursuant to the regulations, unlessanother legal requirement directs the facility to preserve the records forsome additional period of time. 241Although the obligation to obtain consent from every patient maybe burdensome for many facilities, DHHS has determined that theburden is outweighed by the public policy to protect the confidentialityof substance abuse patients’ records. When a substance abuse treatmentprogram completely discontinues operations, it must destroy allmedical records except those for any patients who consent to havingtheir records transferred to another program, or unless a different lawrequires the records to be maintained. 242 Records kept pursuant to anotherlegal requirement must be sealed and labeled. 243 According toDHHS, this other legal requirement may be a state law governing thedisposition of medical records during a closure or change in ownership,or the applicable statute of limitations for malpractice claims. Whenthe retention period expires, the federal regulations authorize destructionof the records. 244 Although the federal rules do not require theprogram to notify patients before destroying their records, other federalor state laws may contain such a notification requirement; thus, healthcarerecords professionals uncertain of the law in this area should obtainlegal counsel prior to destroying records for which the retentionperiod has expired.24142 C.F.R. § 2.19(a)(1) and (2).242Ibid.24342 C.F.R. § 2.19(b)(1).24442 C.F.R. § 2.19(b)(2).