This document discusses the legal health record, including its purposes, content, documentation principles, and requirements for being legally defensible. The legal health record is the business record that would be disclosed upon valid request. It must be inventoried across all source systems and the organization must determine what content is included. Documentation principles include using specific, objective language and completing all entries in a timely manner. For the record to be legally defensible, it requires accurate content, authenticated entries, integrity controls, and compliance with standards around changes, printing, and retention.

1. © 2017 American Health Information Management Association© 2017 American Health Information Management Association
Chapter 9: Legal Health Record:
Maintenance, Content,
Documentation, and Disposition
Fundamentals of Law for Health
Informatics and Information
Management, Third Edition

2. © 2017 American Health Information Management Association
Purposes of the Health Record
• Patient care: Documentation patient treatment and continuity
of care
• Proof of services for reimbursement
• Proof of quality and effectiveness of care (e.g., for
accreditation, certification, licensure)
• Support medical research
• Support education and training
• Support organization’s operational activities
• Facilitate managerial decision-making to improve quality of
patient care
• A legal document/evidence in legal actions
– Adage: “If it isn’t documented, it wasn’t done.”

3. © 2017 American Health Information Management Association
Legal Health Record (LHR)
• Business record that would be disclosed upon
valid request
• Content of LHR must be identified and managed
by inventorying all source systems contributing to
the record (e.g., paper and electronic documents,
databases, images)
• Organizations must determine what becomes part
of the LHR, analyzing inclusion of items such as
– E-mails
– Videos
– Metadata

4. © 2017 American Health Information Management Association
Designated Record Set vs. LHR
• Per HIPAA, a designated record set (DRS) is
“used in whole or in part…to make decisions
about individuals” and includes health
records and records involved in billing,
insurance enrollment and coverage
• A DRS encompasses more information than
what is usually considered part of the legal
health record

5. © 2017 American Health Information Management Association
LHR: Paper vs. Electronic
Health Records
• Six key differences:
– Large volume and ease of duplication
– Persistence: Electronic documents more likely to
continue to exist
– Metadata: Tracking data about data
– Automatic updates
– Obsolescence: With outdated programs or
equipment
– Searchable and dispersed in multiple locations;
more likely with electronic records

6. © 2017 American Health Information Management Association
LHR: Uniform Photographic
Copies of Business and Public
Records as Evidence Act (UPA)
• Both federal and state versions exist
• Supports the transition from paper to
electronic storage of information
• States that the reproduction of any record
that has been retained in the regular course
of business and kept by a process which
accurately reproduces the original in any
medium will be admissible as evidence

7. © 2017 American Health Information Management Association
LHR: Maintenance, Content,
Documentation and Disposition
• Federal Laws
– Medicare Conditions of Participation
• State laws
• Accreditation standards
– Joint Commission
– Other standard setting organizations
• Professional guidelines—AHIMA
• Facility policies—outlined in medical staff
bylaws

8. © 2017 American Health Information Management Association
LHR: Documentation Principles
• Language:
– Entries should be
• Specific
• Objective
• Factual, not speculative or opinion (or should be documented as such)
• Devoid of generalizations or vagueness (e.g., confused, anxious,
appears to be…)
– Response to care should be documented
– Deviations from standard treatment (and patient response) must
be documented completely
– Situations that result in incident reports should be documented
objectively
• Blame or failure should not be documented in the record

9. © 2017 American Health Information Management Association
LHR: Documentation Principles
(continued)
• Individuals who may document
– Documentation in the record shall be completed only by
those authorized per medical staff bylaws
– Providers are responsible to provide high-quality and
complete, authenticated documentation
• Gaps and omissions
– Detract from the chronology of care and increase
likelihood of liability
– Gaps: Spaces left between entries in the health record
– Gaps and omissions in time refer to lengths of time when
there is no documentation

10. © 2017 American Health Information Management Association
LHR: Documentation Principles
(continued)
• Orders:
– Written
– Verbal (in-person and telephone)
• Illegibility of orders is progressively being resolved through
CPOE
• Medical staff bylaws specify categories of personnel who may
accept orders
• All orders must be authenticated (verified) by the provider who
gave the order or who is responsible for the patient’s care
– Time requirements for authentication are governed by state law
• Concurrent review of orders ensures timely authentication

11. © 2017 American Health Information Management Association
LHR: Documentation Principles
(continued)
• Hostile patients
– Require particular attention to objective
documentation
• Staff disagreements
– Differing opinions must be documented in the
record if pertinent to care
– However, documentation should not highlight
disagreements
– Language must be objective and factual

12. © 2017 American Health Information Management Association
LHR: Documentation Principles
(continued)
• Injuries resulting from criminal activity
– Objective and factual documentation
– Documentation should include statements
made, identification and thorough description
of of injuries, and photos
• Liability for improper entries
– Heightened is documentation is missing,
incomplete, biased, critical, and based on
opinions rather than fact

13. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
• Data governance: Associated with data
creation
– Emphasis on accuracy and integrity
• Information governance: Associated with
information after it has been created
– Emphasis on safeguarding and protection

14. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
• Authentication and attestation
– Authenticity: Genuineness of a record; that it is
what it purports to be
– Authentication: Security process that verifies
one’s identity and authorizes system access
– Attestation: Applying a signature to
documentation, showing authorship
• Paper records: Handwritten signatures; initials; rubber
signature stamps (not favored)
• Electronic records: Digitized signature; button, PIN,
biometric identifier or token; digital signature (all
referred to as electronic signatures)

15. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Uniform Electronic Transactions Act (UETA):
electronic records and signatures legally
equivalent to paper records and handwritten
signatures
• Electronic Signatures in Global and National
Commerce Act (E-SIGN): Validates electronic
records and signatures, to be legally recognized
for interstate and foreign commerce

16. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Attestation issues:
– Countersignatures
– Multiple attestations
– Attestation on behalf of another
– Auto-attestation
– Batch signing
– Scribes

17. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Integrity of electronic record content
– Metadata: Provides background information
about actions that affect creation, revision,
and access to data
– Documentation templates: Increase efficiency
and structure, but create integrity issues

18. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Accuracy: Degree to which information in the
record reflects what actually happened
• Authorship and Cut, Copy, Paste (Cloning):
– Information may be placed on wrong encounter or
wrong patient
– Medical plagiarism: Using another’s documentation
without permission
– Risks of healthcare fraud when documentation from
another provider or another patient’s record is used

19. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Abbreviations: Must use only organization-
approved abbreviations
– Must not use Joint Commission prohibited
abbreviations
• Legibility

20. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
– Changes to the health record: Only per
organizational policy
• Revisions: Replacing inaccurate information with
accurate information after attestation
• Additions:
– Late entry: Entry missed or not written in timely manner
– Amendment: Information added to support or clarify (HIPAA
individual right)
– Addendum: New documentation added to original entry after
attestation

21. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Changes to the health record:
– Removal:
• Deletion: Permanent elimination of information
(limited, if permitted at all)
• Retraction: Information no longer available for
viewing but is available in the background
– Version management: How an organization
handles numerous iterations of a document
• If used for patient care, must be retained

22. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Timeliness and completeness:
– Timeliness: Promptness of documentation
– Completeness: Comprehensiveness of
documentation
– Mandated by accrediting and licensure bodies
– Important from evidentiary standpoint

23. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Printing
– Problems:
• Documents printed from EHR, with handwritten
documentation on printouts (which one is the LHR?)
• Duplicate copies lead to cumbersome records
• Multiple copies heighten risk of privacy breaches
• Printed version does not look like record viewed on computer
screen, raising questions re: whether the two records are the
same
– Strict printing policies are important
• Who has authority to print
• Tracking printing in an audit tail
• Format and version of documents that may be printed

24. © 2017 American Health Information Management Association
LHR: Legally Defensible Record
(continued)
• Personal health records (PHRs)
– Standalone PHRs
– Tethered PHRs
– Information provided by the patient
– Question re: whether the PHR should be
integrated into the LHR

25. © 2017 American Health Information Management Association
LHR: Identification, Retention
and Disposition
• Health Record Identification
– Master Patient Index (MPI) and Enterprise Master Patient Index
(EMPI)
• Patient matching
• Health Record Retention
– Storage and retrieval
– Factors affecting retention periods:
• Federal and state laws
• Statutes of limitations
• Accreditation standards
• AHIMA recommendations (best practice)
• Operational needs
– Record retention schedules (paper record retention vs. electronic
record retention)

26. © 2017 American Health Information Management Association
LHR: Identification, Retention
and Disposition
• Health Record Disposition
– Includes destruction or transfer to another medium or
custodian
– Must consider many of the same factors as those
considered for retention periods
– Destruction policy and procedure must consider:
• Schedule for uniform destruction
• Protection of information set for destruction (HIPAA)
• Maintaining records scheduled for destruction that must be
retained (eg, lawsuits, audits)
• Method of destruction (shredding, burning, degaussing, etc.)

27. © 2017 American Health Information Management Association
LHR: Identification, Retention,
and Disposition
• Health record disposition
– Transfer policy and procedure must consider:
• Moving from one medium to another (e.g., paper to
document management system)
• Moving records to another custodian
– Ownership change
– Departing providers
– Closure of organization
– Organization may be liable for failure to produce
health record (paper or electronic) that should be
available per policy and applicable laws