Responding to a Legal Record Request
Receiving a legal record request can be a fear-provoking experience. It’s easy to assume the worst-case scenario is unfolding. However, legal record requests are submitted for many different reasons. When staff have been trained on proper procedures, it can help to alleviate stress and to ensure an effective response.
Legal record requests are submitted to facilities for a variety of different reasons. These may include:
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- Review for disability or other insurance coverage
- Review for current status following an accident with injury or an illness
- Review for legal competence hearings
- Litigation involving the current or prior health care providers
Regardless of the reason for the request, the first step in responding Eis to verify the information being requested, the entity requesting it, the deadline for provision, and the presence of the necessary legal paperwork to grant the request. When records are being requested for a resident who has expired, authorization to release the records of the resident can only be provided by the person legally designated as the Executor/Executrix of the Estate. The request submitted must be accompanied by the legal paperwork showing the person designated as the Executor of the Estate and a medical record release form signed by this appointed Executor that is notarized or legally witnessed. Responsible parties/family members that were appointed as Power of Attorney or Durable Power of Attorney no longer have the authority over the resident’s records once the resident has died, unless they are appointed as Executor/Executrix.
The next step is to notify the facility legal counsel of the request. Counsel can assist the facility in determining the purpose of the request and whether or not legal representation will be needed. They also assist the facility in determining which documents are legally considered part of the medical record and which are shielded by QAPI or other legal protections. They can help to verify that all of the necessary legal authorization is present with the record request and will sometimes deliver the records to a requesting attorney on the facility’s behalf. If extra time is needed to fulfill a valid request, the attorney can also contact the requesting entity to arrange for an extension.
When copying records or printing them from the EMR it is imperative that the responsible staff are aware of the need to prepare clean, centered, organized copies that include double-sided documents if applicable, and that electronic records requested and authorized to be released are all accounted for. Some EMR systems have a set template for printing of records that are requested, but pre-set parameters may not include all of the documents required. The responsible staff must be aware of documentation that would be part of the medical record but may be located in places other than the actual chart, such as paper-based weight records, laboratory reports, or physician provider reports. It is not unusual for the facility legal counsel to request a duplicate copy of the records be provided to them when the facility is preparing them for the legal request, so this should be considered.
Once the records are prepared, it is best practice to have a second qualified facility staff member review them for copy quality and completeness. The records should then be provided to the requesting entity in the manner requested (downloaded to a secure portal or file, mailed, etc.) by the deadline specified in the request unless an extension is granted. It is extremely important that the staff preparing the records understand the significance of the quality and comprehensiveness of their work as this can have a vital impact on the outcome of the reason for the request. Missing or illegible documents can influence the final result of the review.
If a legally requested record is for litigation purposes, it is best practice to safeguard the remaining original records and to prevent any unauthorized access. Every effort should be made to maintain the integrity of the record and prevent removal of, or tampering with any of the documentation.
Next Steps:
- Contact Proactive for Legal Nurse Consulting services. We specialize in post-acute and LTC litigation and Elder Law in addition to Medicare and Medicaid Program Integrity Contractor reviews and FCA matters.
- Schedule training for your team on documentation that withstands legal scrutiny and on responding effectively to a legal record request.
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