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Record Retention Guidelines​

The following is a de-identified composite of calls made to the ACA-sponsored Risk Management Helpline, operated by Anne Marie “Nancy” Wheeler, J.D., an attorney licensed in Maryland and the District of Columbia. This information is presented for educational purposes. For specific legal advice, please consult your own local attorney.

Question: I am a licensed professional counselor in a solo private practice. Can you give me any guidance on how long I should retain my records? 

Answer: You should retain your counseling records for at least the minimum time set by state law, if there is such a law. (See also 2005 ACA Code of Ethics, section B.6.g.) Federal HIPAA laws address privacy and security but do not set record retention periods. Counselor licensure law or regulations sometimes specify how long records must be kept. If not, consider your practice setting and why records may be needed. You may also wish to contact your licensure board to see if they have guidelines for record retention. 

Why would your records be needed in the future? Some of your clients may return to you in the future and records may help you to remember details of the counseling relationship. Some clients may want records to be sent to a new mental health care provider and records can help provide continuity of care. You will want your records to help defend yourself in the event a malpractice lawsuit, ethics complaint or licensure board complaint is filed against you. Furthermore, the “statute of limitations” may be relevant in setting your records maintenance and retention policy; this pertains to the number of years after an injury or its discovery that a client has to file a suit. The statute of limitations for both negligence and breach of contract actions should be checked, since the latter period might apply in a complaint alleging breach of confidentiality.

If there is no set minimum record retention period in your state, you should probably consider retaining your records for a minimum of 7 years for adult clients. If you see Medicaid clients or those receiving other federal government assistance, you may want to extend that period to 10 years (since federal “false claims” actions can be brought against a health care provider up to 10 years). If you treat children, you may wish to keep them until the time they reach the age of majority. In some states, it’s advisable to keep minor’s records until age of majority plus 3 years (or the applicable length of time that pertains to the statute of limitations). Some attorneys advise keeping records indefinitely, but counselors must balance the possible need for records with the cost and trouble of storing them.

Another consideration in setting a record retention policy is that licensure board investigations may sometimes be brought years after an alleged practice violation. There is often no statute of limitations in this venue. Your documentation of care provided can frequently help your attorney get the board complaint dismissed.

There is no “one size fits all” answer to the question of how long to keep records. If you carefully consider the options listed above, and obtain advice from your personal attorney, malpractice company and licensure board, you will be well-positioned to make a reasonable decision that fits your particular practice.

Printed with permission from the American Counseling Association (counseling.org)

This publication is for educational purposes. It is not legal, professional or medical advice. CNA makes no representations as to its correctness or completeness and accepts no liability for any injury or damage that may arise from its use. Specific legal or medical questions should be referred to a competent attorney or medical professional before applying this material in any particular factual situations. This material may address and discuss matters for which your policy does not provide coverage, and the material does not create or imply the existence of coverage. Please consult your insurance policy for the specific terms, coverages, amounts, conditions and exclusions of coverage. All products and services may not be available in all states and may be subject to change without notice. CNA policies are underwritten by the property/casualty companies of CNA, Chicago, IL. CNA is a registered trademark of CNA Financial Corporation. © 2013 Continental Casualty Company. All rights reserved. 

This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. It reflects general principles only. It is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., HPSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information. This publication is published by Affinity Insurance Services, Inc., with headquarters at 159 East County Line Road, Hatboro, PA 19040-1218. Phone: (215) 773-4600. All world rights reserved. Reproduction without permission is prohibited. 

Healthcare Providers Service Organization is a registered trade name of Affinity Insurance Services, Inc.; (AR 244489); in CA, MN & OK, AIS Affinity Insurance Agency, Inc. (CA 0795465); in CA, Aon Affinity Insurance Services, Inc., (0G94493), Aon Direct Insurance Administrator and Berkely Insurance Agency and in NY and NH, AIS Affinity Insurance Agency. © 2013 Affinity Insurance Services, Inc.

 

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