Tenn. Comp. R. & Regs. 1155-04-.22 - PATIENT RECORDS

(1) Purpose - The purpose of this rule is:

(a) To recognize that patient records are an integral part of the practice of orthotists, prosthetists, and pedorthists as defined in T.C.A. § 63-3-201.

(b) To give orthotists, prosthetists, pedorthists, their professional and non-professional staff, and the public direction about the content, transfer, retention, and destruction of those patient records.

(2) Applicability - This rule regarding patient records shall apply only to those records, the information for which was obtained by orthotists, prosthetists, pedorthists, or their supervisees, for purposes of services provided in any clinical setting other than those ., provided in a hospital as defined by T.C.A. § 68-11-302(4), a hospital emergency room, or hospital outpatient facility.

(3) Patient Records -

(a) Duty to Create and Maintain Records - As a component of the standard of care and of minimal competency, an orthotist, prosthetist, or pedorthist must cause to be created and cause to be maintained a patient record for every encounter between a patient and the orthotist, prosthetist, or pedorthist. For purposes of this Rule, a patient is defined as a person for whom the orthotist, prosthetist, or pedorthist has undertaken to treat or for whom the orthotist, prosthetist, or pedorthist has participated in treatment.

(b) Notice - Any notice to be provided to a patient required by these rules shall be issued within thirty (30) days of the date of the event that triggers the notice requirement, and shall be accomplished by mailing to the last known address of the patient.

(c) Content - In order to meet the minimum level of competency required of orthotists, prosthetists, and pedorthists, the patient records required by this rule shall:

1. Be recorded in such a manner as to be legible to an ordinary reasonable person, including those persons who are not licensed healthcare professionals;

2. Include all information and documentation listed in T.C.A. § 63-2-101(c)(4), to the extent applicable;

3. Contain such additional information that is necessary to ensure that a subsequent reviewing or treating healthcare professional can both ascertain the basis for the treatment plan and outcomes, and provide continuity of care for the patient.

(d) Transfer -

1. Applicability of Notice Requirements - The notice requirements of this part are only required for patients who have either:

(i) Had three (3) or more office encounters with the orthotist, prosthetist, or pedorthist over the eighteen (18) month period that immediately precedes the event that would otherwise trigger the notice or

(ii) Had their initial evaluation and treatment plan developed by the orthotist , prosthetist, or pedorthist.

2. Records of Orthotist, Prosthetist, or Pedorthist upon Death or Retirement - When an orthotist, prosthetist, or pedorthist retires or dies while in practice, patients who meet the requirements of 1155-04-.22(3)(d) 1. shall be notified by the orthotist, prosthetist, or pedorthist, or his authorized representative; urged to find a new orthotist, prosthetist, or pedorthist; and informed that upon patient or patient's representative's authorization copies of the patient's records will be sent to the new orthotist, prosthetist, or pedorthist.

3. Patient Records of Orthotist, Prosthetist, or Pedorthist upon Departure from a Group - The responsibility for notifying patients of an orthotist, prosthetist, or pedorthist who leaves a group practice for any reason other than death shall be governed by the employment or professional services contract of the orthotist, prosthetist, or pedorthist. If such contract does not address the notification issue, or if an employment or professional services contract does not exist, the group shall be responsible for notifying the patients of the orthotist, prosthetist, or pedorthist that the orthotist, prosthetist, or pedorthist has departed from the group.

(i) Whoever is responsible for the notification referenced in the immediately preceding paragraph must notify patients of the orthotist, prosthetist, or pedorthist who meet the requirements of 1155-04-.22(3)(d) 1.

(ii) The orthotist, prosthetist, or pedorthist who is departing from a practice group must provide the practice group with his new practice address. Failure to provide this information within two (2) weeks of the departure date from the practice group will relieve the practice group of any obligation to provide the new address of the orthotist, prosthetist, or pedorthist as set out in (iii) below.

(iii) These patients shall also be notified of the orthotist's, prosthetist's, or pedorthist's new address, if known and provided by the departing orthotist, prosthetist, or pedorthist, and offered the opportunity to have copies of their patient records forwarded to the departing orthotist, prosthetist, or pedorthist at his new practice. A group shall not withhold the patient records of any patient who has authorized their transfer to the departing orthotist, prosthetist, or pedorthist or any other orthotist, prosthetist, or pedorthist.

(iv) The choice of orthotist, prosthetist, or pedorthist in every case should be left to the patient, and the patient should be informed that, upon authorization, his patient records will be sent to the orthotist, prosthetist, or pedorthist of the patient's choice.

4. Sale of an Orthotist, Prosthetist, or Pedorthist's Practice - An orthotist, prosthetist, or pedorthist or the estate of a deceased orthotist, prosthetist, or pedorthist, may sell the elements that comprise his practice, which include the goodwill of the practice and the opportunity to take over the patients of the seller by purchasing those records; provided that nothing herein shall be deemed to preclude the ultimate decision-making rights of the patient. Therefore, the transfer of patient records upon the sale of an orthotist, prosthetist, or pedorthist's practice is subject to the following:

(i) The orthotist, prosthetist, or pedorthist (or the estate) must ensure that all patient records are transferred to another orthotist, prosthetist, or pedorthist or entity that is held to the same standards of confidentiality as provided in these rules.

(ii) Patients seen by the orthotist, prosthetist, or pedorthist who meet the requirements of 1155-04-.22(3)(d) 1. shall be notified that the orthotist, prosthetist, or pedorthist (or the estate) is transferring the practice to another orthotist, prosthetist, or pedorthist, or entity who will retain custody of their patient records and that, upon written authorization by the patient or the patient's representative, the copies of their patient records will be sent to another orthotist, prosthetist, or pedorthist.

5. Failure to Adequately Provide for Transfer of Patient Records or Notify Patients - It shall be a prima facie violation of T.C.A. § 63-3-204(b)(9) and (10) for a orthotist, prosthetist, or pedorthist to depart from his group, retire, or sell his practice without making written provisions for the security or transfer of patient records, or otherwise establish and memorialize in writing a secure method of patient access to his patient records.

(e) Retention of Records - Patient records shall be retained for a period of not less than seven (7) years from the orthotist's, prosthetist's, or pedorthist's last professional contact with the patient except for the following:

1. Patient records for incompetent patients, other than those who are incompetent solely because they are minors, shall be retained at least until one (1) year after the patient's death or alleviation of incompetency.

2. Patient records of minors shall be retained for a period of not less than one (1) year after the minor reaches the age of majority or ten (10) years from the date of the orthotist's, prosthetist's, or pedorthist's last professional contact with the patient, whichever is longer.

3. Notwithstanding the foregoing, no patient record involving services which are currently under dispute shall be destroyed until the dispute is resolved.

4. Nothing herein shall be deemed to supersede any federal or state law or regulation requiring providers to retain patient records for periods longer than the time stated above.

(f) Destruction of Records -

1. No patient record shall be singled out for destruction other than in accordance with established office operating procedures.

2. Patient records shall be destroyed only in the ordinary course of business according to established office operating procedures that are consistent with these rules.

3. Physical copies of patient records may be destroyed by burning, shredding, or other method that safeguards patient protected health information from any use or disclosure that is in violation of any state or federal laws or regulations.

4. Any recordable and erasable media device upon which electronic patient records have been stored must be rendered inaccessible, cleaned, or scrubbed by overwriting the data, degaussing the media (using magnetic field to neutralize the data stored on magnetic media), or other method that safeguards patient protected health information from any use or disclosure that is in violation of any state or federal laws or regulations. Simply discarding a data storage device without rendering the data stored upon it inaccessible, cleaned, or scrubbed does not constitute compliance with this rule.

5. When patient records are destroyed, the time, date and circumstances of the destruction shall be recorded and maintained for future reference. The record of destruction need not list the individual patient records that were destroyed but shall be sufficient to identify which group of destroyed patient records contained a particular patient's records.

(4) In addition to the requirements of this rule, orthotists, prosthetists, and pedorthists must also comply with the Health Insurance Portability and Accountability Act (HIPAA) and the regulations promulgated thereto if such entity is considered a Covered Entity as defined by HIPAA. Failure to comply with HIPAA shall constitute violation of this rule unless the provider proves to the satisfaction of the Board that he is not required to comply with HIPAA.

(5) Mandatory Release of Patient Records -

(a) Pursuant to T.C.A § 63-2-102 and upon request from a patient or the patient's authorized representative, an individual registered with this Board shall provide a complete copy of the patient's records or a summary of such records which were maintained by the provider. The provider may charge a reasonable fee for production of such records as authorized in T.C.A. § 63-2-102.

(b) It shall be the provider's option as to whether copies of the patient records or a summary will be given to the patient, in accordance with T.C.A. § 63-2-101(a)(1).

(c) Requests for patient records shall be honored by the provider in accordance with timelines identified in T.C.A. § 63-2-101.

(d) Nothing herein shall be deemed to supersede any federal or state law or regulation.

(6) Violations - Violation of any provision of these rules is grounds for disciplinary action pursuant to T.C.A. §§ 63-3-204(b)(9) and 63-3-204(b)(10).

(7) This rule shall be applied prospectively. An orthotist, prosthetist, or pedorthist shall not be found to be in violation of this rule if the violation occurred before the effective date of this rule.

Notes

Tenn. Comp. R. & Regs. 1155-04-.22

New rule filed May 7, 2021; effective 8/5/2021.

Authority: T.C.A. §§ 63-3-201, 63-3-202, and 68-11-302.