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Release and Confidentiality of Patient Records

ADVISORY OPINION OF THE CODE OF ETHICS

Subject:
Release and Confidentiality of Patient Records

Issues Raised:
What are the ethical and related obligations concerning medical records and the release of patient information?

Applicable Rules:

Rule 1. Competence
Rule 4. Other Opinions
Rule 14. Interrelations Between Ophthalmologists

Background:  
As a general rule, a physician, a physician’s clinic, or group practice "owns" medical records subject to the patient’s expectation and right of privacy, and the doctor-patient privilege. The information within the medical record is considered the property of the patient, and the patient has an ethical right and generally, a legal right, to prompt and complete access to this information. By federal statute and regulations, (HIPAA, 1996), relatively new restrictions and regulations have been introduced and the practitioner is required to become familiar with the law. Ownership of patient medical records is also subject to the patient’s right to obtain copies of those records or to have copies transferred to another person.  Most states provide for an exception, excusing a refusal to deliver medical records to a patient if it is determined that information in the records could be detrimental to the physical or mental health of the patient, or is likely to cause the patient to harm him or herself or someone else.

General Discussion:  
It is essential to quality medical care that ophthalmologists cooperate fully, freely, and promptly in sharing copies of medical records, including progress notes, prescriptions, charts, reports, laboratory results, and technical information used to assess the patient’s health condition, as well as letters, photographs, x-rays, and diagnostic imaging. Reports and letters may contain wording that prevent re-release of that information. This is particularly true of consultants' reports. (It is important to note that a physician may also keep personal notes not related to patient care that are separate and distinct from the medical record; these do not have to be released.)

In most states, a physician may be subjected to severe disciplinary action, including suspension or even revocation of licensure, for a failure to comply promptly and fully with these requirements. Except for a recognized statutory reason, (e.g., an improperly executed release), an ophthalmologist should not refuse to make a patient’s medical records available to the patient, the patient’s legal representative, or another person upon receipt of proper authorization. In some instances, such as for patients with HIV, a special authorization may be required.  Medical records should never be withheld merely because of an unpaid bill for services or because the patient has elected to see a competing ophthalmologist.  However, it is permissible in most states to bill for the reasonable costs of making the requested copies.

Compliance with HIPAA:  
The Health Insurance Portability and Accountability Act (HIPAA) of 1996 provided for regulation of the security and privacy of medical data.  The federal government published medical records privacy regulations in December 2000.  The privacy regulations protect the privacy of individually identifiable health information through restrictions on the use and disclosure of such information.  The federal government published regulations adopting standards for the security of electronic health information in February 2003. The security rule specifies a series of administrative, technical, and physical security procedures for covered entities to use to assure the confidentiality of electronic protected health information. The regulations for privacy and security of medical records are broad, and between the two cover electronic, paper and oral communications when they include any identifiable patient information.  Failure to comply with these regulations may result in civil penalties of up to $25,000 per person, per year for each requirement or prohibition violated, and for knowingly violating patient privacy, criminal penalties ranging from up to $50,000 and 1 year in prison to up to $250,000 and up to 10 years in prison.  It is critical, therefore, that practitioners become familiar with the HIPAA requirements related to medical records, and always use, disclose and safeguard individually identifiable patient health information in compliance HIPAA and the related regulations.

Several specific situations with respect to the release and confidentiality of patient records require special attention. Ophthalmologists should be aware of federal rules (42 C.F.R. Part 2) concerning the confidentiality of patient records on alcohol and drug abuse. These rules prohibit the disclosure of this portion of medical records except under very specific and well-defined conditions.  Violation of these rules is a federal crime.

First, the ophthalmologist should not release these records unless the patient executes a release form specifically covering alcohol and drug-abuse records. Second, when releasing copies of such medical records to anyone other than the patient, the ophthalmologist should place a cover sheet on all record sets stating the following, in this or substantially similar form:


Notice of Confidentiality
  This information has been disclosed to you from records protected by federal confidentiality rules (42 C.F.R. Part 2).  The federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 C.F.R. Part 2.  A general authorization for the release of medical or other information is NOT sufficient for this purpose.  The federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.

Laws governing the release of AIDS and HIV-related information vary greatly from state to state.  In New York and Maine, for example, the regulations are very stringent: AIDS and HIV-related information should only be released upon execution of a consent form specifically designed for that purpose; a general release form is not adequate.  The form should be witnessed, and should include a notice prohibiting redisclosure.

Another situation of potential concern involves the disposition of patients' medical records upon the death or retirement of an ophthalmologist or the sale of that ophthalmologist’s practice.  In many such instances, it is wrongly assumed that the records are freely transferable, and that the recipient has the same ownership rights as the original ophthalmologist.  However, in many states the recipient may be only a custodian of the patient’s medical records would have no right even to inspect those records except to obtain the patient’s name and address for the purpose of communicating with the patient, unless and until the patient (1) expressly or by clear implication (as by seeking medical advice, prescription renewal, treatment, or other medical assistance from the new ophthalmologist) consents to the transfer of the his/her medical records, or (2) properly directs the transfer of the records to another physician.  If records are transferred, the receiving physician must retain the original physician’s records in a secure place for the applicable time period required by state law for the retention of patient records. In addition, it is not unreasonable for the family or legal counsel of the deceased physician or the buyer of the practice to have a written agreement that the buyer or the executors of the deceased physician shall have access to copies of patient records to comply with inquiries of professional medical conduct proceedings or malpractice actions.

Applicable Rules:

"Rule 1. Competence. An ophthalmologist is a physician who is educated and trained to provide medical and surgical care of the eyes and related structures. An ophthalmologist should perform only those procedures in which the ophthalmologist is competent by virtue of specific training or experience or is assisted by one who is. An ophthalmologist must not misrepresent credentials, training, experience, ability or results."
"Rule 4. Other Opinions.  The patient's request for additional opinion(s) shall be respected. Consultation(s) shall be obtained if required by the condition.
"Rule 14. Interrelations Between Ophthalmologists.  Interrelations between ophthalmologists must be conducted in a manner that advances the best interests of the patient, including the sharing of relevant information."

Other References:

"Principle 7. An Ophthalmologist’s Responsibility.  It is the responsibility of an ophthalmologist to act in the best interest of the patient."
Current Opinions of the Council on Ethical and Judicial Affairs, of the American Medical Association, Section 7.01 ("Records of Physicians: Availability of Information to Other Physicians"); 7.02 ("Records of Physicians: Information and Patients"); 7.03 ("Records of Physicians on Retirement"); 7.04 ("Sale of a Medical Practice"); and 8.04 ("Consultation").  42 C.F.R. Part 2, "Confidentiality of Alcohol and Drug-Abuse Patient Records."

Approved by: Board of Directors, September 1989
Revised and Approved by: Board of Directors, June 1992 
Revised and Approved by: Board of Trustees, February 1997
Revised and Approved by: Board of Trustees, November 2003
Reaffirmed and Approved by: Board of Trustees, March 2008