Pointers for psychologists on client record retention

Do you know what your state law requires regarding client record retention? Are you aware of APA's Record Keeping Guidelines?

by Legal and Regulatory Affairs Staff

September 30, 2008 — "The psychologist strives to be aware of applicable laws and regulations and to retain records for the period required by legal, regulatory, institutional and ethical requirements."

This statement introduces Section 7, Retention of Records, of the "Record Keeping Guidelines" approved in 2007 as American Psychological Association (APA) policy.

As reflected in the guidelines, the amount of time to retain records depends largely on relevant laws and regulations. Many states - such as California, North Carolina, Tennessee and Connecticut - require health professionals to maintain records for seven years after the professional relationship ends. This time period typically does not start for minors' records until the minor reaches the age of majority.

Yet some states impose different requirements or none at all. For example, Pennsylvania law requires keeping patient records for children as well as adults for five years since the last patient contact. Illinois has no record keeping law; the state psychological association directs psychologists to APA's Record Keeping Guidelines.

The psychology licensing board or a state or local psychological association to which you belong can provide information about requirements in your state.

In the absence of state law guidance, APA's Record Keeping Guidelines indicate that psychologists may consider maintaining full records for seven years after the last date of service or for three years after a minor patient reaches majority, whichever comes later.

While Medicare has record retention requirements for facilities such as hospitals and hospice, the federal program does not impose such requirements on Medicare providers in private practice. Private health insurers and other third-party payers may designate record retention periods that apply to the files of patients that they cover. To learn about applicable policies, check your provider manual or contact the company's provider relations representative if you are affiliated with any private insurers.

A psychologist who may consider keeping records longer than the period required by state law should weigh competing considerations. The longer you retain records, the greater risk you may face that confidential information could be revealed. For example, a client's records may be subpoenaed in litigation where his/her mental health is at issue, or a patient may be required to authorize access to his or her record when applying for a job or life insurance. In addition, retaining records over long periods may be challenging or expensive - for example, storing extensive paper records for numerous clients.

On the other hand, as stated in the APA Record Keeping Guidelines, an earlier record of symptoms of a mental disorder might be useful in later diagnosis and treatment. In addition, old records may provide a defense to psychologists who are sued or face a licensing board complaint.

Psychologists in institutional or organizational settings such as hospitals and university counseling centers need to follow any record retention requirements of the institution. Section 10 of APA's Record Keeping Guidelines addresses several issues that arise when psychologists provide services in these settings, including conflicts between organizational and other requirements, ownership of the records, and access to records.

Guidance from APA's ethical principles

In addition to the association's Record Keeping Guidelines, Section 6.01 of APA's "Ethical Principles and Code of Conduct" identifies several reasons for psychologists to create and retain records. As such, APA offers further guidance for psychologists in considering good record keeping practices:

6.01 Documentation of Professional and Scientific Work and Maintenance of Records
Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments and (5) ensure compliance with law. (See also Standard 4.01, Maintaining Confidentiality.)
Source: "Ethical Principles of Psychologists and Code of Conduct," American Psychological Association, Effective June 2003.

HIPAA

Some health professionals mistakenly believe that the Health Insurance Portability and Accountability Act (HIPAA) mandates the length of time that health care professionals must retain clinical records.

If applicable to you, HIPAA does require that you maintain certain documents required by the law - such as policies and procedures manuals and records of certain disclosures -for six years from the date of creation or the date when the document was in effect, whichever is later. For example, if you implement new HIPAA policies and procedures today, you must keep a copy of the now outdated policies and procedures for another six years.

However, HIPAA does not govern how long clinical records themselves must be maintained.

PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.