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Statutory Requirements on Record Keeping

There are some statutory requirements on the keeping of medical records. For example, certain Medicaid/Medicare reimbursement regulations require that the medical records of recipients be available for verification of charges for a five-year period. The most comprehensive federal regulations concerning medical records were promulgated by the Occupational Safety and Health Administration (OSHA) and became effective on 21 August 1980. While these regulations may be modified in view of current court challenges, it is expected that their general provisions will survive.

The OSHA regulations affect medical records held by health care providers who either work directly for an employer or who have some type of ongoing relationship with the employer. While the legal definition of an ongoing relationship is not clear, it can be assumed that the OSHA regulations would apply to the situation where the health care provider contracts with the employer to render medical care to the employees. The usual example is a clinic that performs preemployment physicals for a given employer. The following OSHA regulations apply to employees who are exposed to toxic agents:

Exposure or exposed means that an employee is subject to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure and potential (e.g., accidental or possible) exposure, but does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical nonoccupations situations.

The regulation then defines "toxic substance or harmful physical agent" in such a way as to make the class of covered employees very large:

"Toxic substance or harmful physical agent" means any chemical substance, biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperaric pressure, etc.) which:

(i) is regulated by any federal law or rule due to a hazard to health,

(ii) is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS)...

(iii) has yielded positive evidence of an acute or chronic health hazard in human, animal, or other biological testing conducted by, or known to, the employer, or

(iv) has a material safety data sheet available to the employer indicating that the material may pose a hazard to human health.

For OSHA purposes, an employee medical record is defined as any record made by a health care provider (doctor, nurse, therapist, and so forth) or medical technician. It includes the entire medical record, employment and medical questionnaires, records of preemployment physicals, screening tests, and x-rays. The regulations exclude physical specimens unless they are covered by other laws. Records of voluntary help programs, such as drug abuse and alcoholism treatment programs and counseling programs, are excluded from the regulation if the records are kept in a place separate from the normal medical records of the patient.

The federal regulations provide that the medical records must be maintained for a least 30 years after the termination of employment. The regulations allow the medical records to be reduced by microfilming or other storage techniques, but x-rays must be maintained in their original form. The retention of the original x-rays is important in this type of record because chronic lung disease is a major problem in occupational health. Using current reproduction techniques, there is really no satisfactory way to reduce an x-ray so that all the original information is retained. As noted later in the section on access to medical records, the regulations also provide detailed provisions for employee access to their own medical records.

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