Handling patient record retention and access when leaving a practice

This article provides guidance for psychologists when no written agreement exists.

Dr. Doe is hired to work for XYZ Psychological Practice and is assigned a patient caseload. After a period of time, Dr. Doe decides to leave the practice and strike out on his own. Dr. Doe has seen 200 patients, 10 of whom need continued therapy. Who controls all the records?

Typically a psychologist who joins a practice as an employee or contractor signs an agreement at the start that defines the roles and rights of each party. That agreement should clearly state who will retain and have access to the records of current and former patients if the psychologist leaves the practice. Absent such an agreement, questions arise about who keeps the records of patients the psychologist saw while in the practice. This article is intended to provide guidance where no such agreement exists.

The issue of custody of records goes beyond who is able to continue to see that patient. The party that keeps the records is ultimately legally and ethically responsible for the safe and secure storage of information and for compliance with requests for their release by patients and third parties. Control of and access to records is also important in the event of a complaint or lawsuit about the psychologist’s services while in the practice (which might be made against both the psychologist and the practice).

When an employee/contractor agreement is silent as to who retains the records, and therefore who is responsible for them, there are other resources that can be looked at to help determine the answer.

Many states have language, either in the psychology practice act, administrative code or other statutes related to health care, regarding who is responsible for the maintenance of records and privacy. The language can vary, so it is important to look to your state’s laws and rules.

For example, Florida1 requires the psychologist to maintain the records unless there is an agreement in place that states the practice will be responsible. Other states may not be as clear. For example, Virginia2 states that the records belong to the health care entity and defines an entity as the provider, corporation, facility or institution licensed by the Commonwealth. Other states, such as Pennsylvania3, may not speak to the “ownership” of the records, but say that the psychologist is responsible for maintaining the record and for providing for the confidential disposition in the event of withdrawal from practice, incapacitation or death. 

If the issue remains unclear after looking at state laws and rules, turn to the informed consent form that patients sign, and any HIPAA notice of privacy practices to determine what the patient would expect. Does the patient consider himself/herself to be the patient of the psychologist or the practice? Are the forms clear about who is providing services, keeping the records and protecting the patient’s confidentiality? In addition to considering the patient’s expectations at the time of service, it is also important to consider the patient’s wishes upon learning that the psychologist is leaving the practice. If the patient decides to continue services with the departing psychologist, the psychologist will need to have at least a copy of the record for continuation of services.

There are two solutions that may be helpful for addressing disputes that arise regarding the records. One is to make a copy of the records so that each party has a copy. The second is to have a written agreement that one party will retain the records but give the other party reasonable access to the records if needed — for example, if both parties are sued or faced with a licensing board complaint from the same patient. These solutions can be helpful even if the employment/contracting agreement clearly gives one party (likely the practice) custody of and control over the records.

To prevent questions and disputes from arising, it is important for psychologists to address these record issues before the employment/contracting process even begins. The arrangement should specify whether the practice or the departing psychologist will maintain and/or have access to the records of past and current patients, how current patients will be cared for after separation, and what will happen if the patient chooses to go with the psychologist and not stay with the practice. For example, according to APA Ethics Code Section 10.09, Interruption of Therapy, “When entering into employment or contractual relationships, psychologists make reasonable efforts to provide for orderly and appropriate resolution of responsibility for client/patient care in the event that the employment or contractual relationship ends, with paramount consideration given to the welfare of the client/patient. (See also Standard 3.12, Interruption of Psychological Services.)”

The APA Ethics Code and APA Record Keeping Guidelines recognize that psychologists generally have responsibility for the maintenance and retention of their records4. Guideline 13 specifically advises psychologists to have a plan for transfer and disposal of records. It is also important to know your state law. If the state imposes obligations on the psychologist regarding records, the psychologist will want to ensure that the practice has taken appropriate steps to be in compliance with the law. 

In cases where no agreement exists (or the agreement is not clear) and the two solutions mentioned above do not resolve the issue, the psychologist should consult with a licensed attorney in his or her state to ensure that the records are handled in accordance with applicable laws and ethical obligations after a separation.

64B19-19.003(4), Florida Administrative Code
§ 32.1-127.1:03 A and B, Code of Virginia
§ 41.57, Pa. Code
APA Record Keeping Guidelines, Guideline 1. APA Ethics Code, Standard 6.01

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 and vary by jurisdiction. The information in this article does not constitute legal advice and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.