Key Messages:
- All physiotherapists are responsible for ensuring that client records are retained for the mandatory retention period.
- All physiotherapists have a duty to ensure that client records are not abandoned.
- If you are the custodian of client records, you need to develop contingency plans to make sure that client records are securely stored, retained for the required period, and are not abandoned.
From time to time the College gets calls from physiotherapists asking what to do with their client records when closing or leaving a practice. A significant concern from both the College of Physiotherapists of Alberta and the clients involved would be the abandonment of the client record. Physiotherapists should have a plan in place to manage client records if the practice setting shuts its doors or the physiotherapist falls ill.
Abandonment of client records refers to situations where a physiotherapist does not take proactive steps to ensure that client records are securely stored, retained in accordance with the Standards and requirements of legislation, and appropriately disposed of at the conclusion of the retention period. Examples of abandonment of records include the physiotherapist who places records in a storage unit but fails to pay the ongoing storage fee, or who becomes ill and closes their business but does not take steps to secure and properly store the client records held by the business.
Physiotherapists must not abandon client records under any circumstances.
Apart from discussing the prevention of abandonment of client records, this article will also provide background information on how physiotherapists can determine their level of responsibility and how they should approach their responsibilities relating to the retention of client records and prevention of record abandonment.
First, let’s review the requirements established in the Standards of Practice.
The Standards of Practice
Both the current Documentation and Record Keeping Standard of Practice and the proposed draft Standard include wording establishing requirements to
- Retain records (e.g., client, financial) according to the length of time specified by applicable legislation and regulatory requirements.
- Clinical and financial records are retained for ten (10) years after the last date of service.
- Clinical and financial records for minors are retained for ten (10) years past the minor’s 18th birthday.
- Retain records in a manner that enables a complete or any component of the record to be retrieved and copied upon request, regardless of the media (paper or electronic) used to create the record.
- Dispose of records (e.g., electronic, paper) in a manner that maintains privacy and confidentiality of personal information.
- Take action to prevent abandonment of client records.
The draft Standard of Practice further elaborates on the expectations related to preventing abandonment of client records by requiring physiotherapists to:
- Ensure contractual agreements are in place any time a third party is engaged to process, store, retrieve or dispose of health information or provide information technology services, and that the terms of the agreements address ongoing access, security, and use and destruction of client information for the duration of the required retention period.
- Designate an identifiable individual or information manager to ensure the retention, accessibility, and security of client records in the event that the physiotherapist is unable to continue as custodian of client records (e.g., in the case of retirement, closing a practice).
These draft performance expectations are intended to provide clear direction to physiotherapists regarding the tangible actions they take to avoid record abandonment.
Are you the Custodian?
Personal Information Protection Act
Ownership of a Physiotherapy Practice:
Whether you are a sole proprietor running a mobile practice out of your home or you have a corporation that owns several clinics, as the identified owner you are responsible for retaining all of the client records if the practice site(s) closes. Part of being a business owner is knowing the responsibilities that come with that ownership. Unfortunate events such as declaring bankruptcy or becoming ill do not exempt you from the responsibility of maintaining client records in accordance with privacy legislation and the expectations found in the Standards of Practice.
Private Sector Contractors:
An independent contractor also has the responsibility for record retention just as an owner would. By definition, an independent contractor is able to ‘pick up’ their business and relocate at any time, taking their clients and records with them. However, many physiotherapists who contract their services are not truly independent and have entered contractual agreements indicating that the practice location where they work will be responsible for any and all record retention relating to client care. In other cases, some business contracts can identify the physiotherapist as being responsible for the ongoing security and retention of physiotherapy records after they depart a practice site.
When signing any contract, physiotherapists should review record retention agreements and be aware of the implications of any agreements they sign. If you agree to retain your client records you need to consider the implications of that decision. You need to have plans in place that take into consideration your ongoing responsibilities and include contingency plans for different possible scenarios.
If the practice setting will retain the physiotherapy records, you still have a responsibility to review the record retention policies and practices to ensure that the practice setting is retaining the records in a way that meets the expectations found in the Standards of Practice and that proper security and retention practices will continue after you depart the practice.
Health Information Act
Affiliates to Custodians under the Health Information Act:
In both public and private practice environments, physiotherapists may be designated as an affiliate to a custodian identified under the Health Information Act. In this case, it is the custodian who has responsibilities regarding the collection, access, security, retention, and disposal of health information. The affiliate’s role is to act as an extension of the custodian and fulfill the custodian’s responsibilities as specified in legislation.
Private Multidisciplinary Practice with a Custodian under the Health Information Act: Some practice settings employ a process where they hire one individual who is a custodian under the act and other health professionals in the practice setting are designated as their affiliates. This approach may enable members of a multidisciplinary team to have access to Netcare. A physiotherapist employed in multidisciplinary practice must know whether they have been designated as an affiliate to a custodian under the Act as this will affect their responsibilities regarding client record retention. If designated as an affiliate, the physiotherapy records would be subject to the privacy requirements of the custodian and under the custodian’s control. The potential issue with this arrangement is that if the custodian leaves the practice setting, they could depart with all the health records unless a new custodian is identified to take over the responsibility or an information manager agreement is established.
Public Practice – Facility Based: If you work for AHS or Covenant Health, the client records are subject to the Health Information Act. The organization would be the custodian of the health record, and you would be considered an affiliate. You would not be responsible for retaining client records. However, as an affiliate to a custodian, you have a role to play in ensuring that the privacy requirements established in legislation are met, acting as an extension of the custodian.
Freedom of Information and Protection of Privacy Act
Public Practice – WCB or School Setting: The client records generated by physiotherapists working for public entities such as school boards or as an employee of WCB are not subject to the Health Information Act.
If you are an employee of the WCB, the WCB is the custodian of the client records. Client records generated by employees of the WCB are subject to the Freedom of Information and Protection of Privacy Act.
If you work in the school sector, your responsibilities regarding the health records you generate depend on the employment contract signed and the nature of your employment relationship with the school or school board. The records may be under the custody of the school or school board and be subject to the Freedom of Information and Protection of Privacy Act or may be under your custody and control and subject to the Personal Information Protection Act.
TLDR: All physiotherapists are responsible for retaining client records either as a custodian who is directly responsible for security and retention or as an employee and affiliate to a custodian who must meet the expectations found in the Standards of Practice and legislation. If you are not directly responsible for the storage and eventual destruction of the client record, you are responsible for following the policies of the organization you work for and taking steps to fulfill those obligations.
I am the custodian. What do I need to think about?
How records are retained has changed significantly in the past 10 years. There are many options for securely storing records for the duration of the retention period.
You store the records:
- Paper Records should be in a secure storage space. This could be in your house or a storage facility but should be under lock and key.
- Electronic records must also be stored securely. This could be on an encrypted hard drive in a locked cabinet, with your current EMR provider, or on the cloud through secure means.
You reach an agreement with a 3rd party to store records on your behalf:
- Contract the responsibility to an information management company.
- Agree with a colleague or competitor to take over the management of the chart records.
Plan in Advance
Unfortunate scenarios that the College has encountered related to record abandonment occur when there is a sudden death of a physiotherapist who had the responsibility to retain records, or a physiotherapist has an ongoing illness that affects their ability to fulfill their obligations.
If you are the custodian of client records it is imperative that you develop contingency plans that include the management of client records in the long term that account for these potential situations. This may involve having an agreement with a colleague to take over custody and control of records in the event of your death, identifying businesses that you can contract to take control of your records, and setting aside sufficient funds to pay for the service.
Like most of the physiotherapist’s assets, without a plan for ongoing record management, they could become the responsibility of the physiotherapist’s estate. This can be daunting to address for those left behind, so it is always best to be forward-thinking and have instructions in place for how to address these potential situations.
At no point should client records be abandoned by a physiotherapist. The article outlined how to understand your responsibilities as a physiotherapist and provided steps to ensure that the client record would be maintained and then destroyed at the appropriate time. If you have any further questions regarding record retention, please contact the practice advisor with the College of Physiotherapists of Alberta.
Action Items
- Learn your individual responsibilities regarding record retention.
- Read and review organizational policies and procedures regarding client records
- Identify if you have direct responsibility for record retention as a custodian
- If you are directly responsible for record retention:
- Plan in advance for situations where you may need assistance from a third party to fulfill your professional obligations. Set aside funds to ensure responsibilities are met.
- Follow through with the requirements found in the Standards of Practice regarding record retention.
