March 25, 2014


Dear Jennifer,
Medicare asked for records for a doctor who left the practice last year and took his files.  What do we do now?
Please advise.  Thanks, Dr. P

Yikes!  Before I get to the "what do we do now" part of our answer, I'll provide some basic information on custodianship of records.  At all times a medical record is "owned" by the patient it is generated about and for.  The practice the patient is visiting and who is treating is the custodian; notice the last sentence says practice and not doctor.  Practice is identified as by tax ID number, Medicare billing number, contract with payor, employer of providers, etc.  There are many singular identifying characteristics of a "practice", none of which are defined (except for maybe reputation) by a single provider. A "practice" in Medicare's eyes is the tax ID and identification number associated with the entire practice, not just one provider.  

Here, we have a practice being audited by Medicare and a departed physician took records which the practice had an obligation to maintain custodianship of.  At all times the records belong to the patients; patients who were at the time patients of the practice.  Should the physician had departed and patients followed, the patients would then be a patient of the new practice the physician landed at.    Most contracts have (or should have) provisions addressing access to records after the physician departs the practice; reason being for scenarios just like this - where a physician may need access to produce or defend.

Now to address what to do now - you can try to recover the records from the departed physician, explain to Medicare the situation and attempt to redirect their attention to the departed physician, or attempt to reason with Medicare and come to a resolution.  I do not recommend trying any of the above without the assistance of your healthcare attorney.  So, feel free to call me (516) 747 6700 x. 302 or email me and we can discuss next steps.