Release and Transfer of Records

Originally published in the February/March 2011 issue of Dispatch

My patient says that she has paid for the radiographs and is entitled to them. Can I give these to her?

The patient has paid for the diagnostic services you provided based on the radiographs, and the regulations require you to retain these. The patient is entitled to have copies of the radiographs that meet diagnostic standards.

Can the patient pick up their dental records or have these mailed to their home?

Yes, the patient can either pick up copies of their dental records from your office or ask to have them mailed to their home. Most dentists ask for the patient sign a form to confirm they received the records if they pick them up in person. If someone else arrives to pick up the patient’s records, make sure you have the patient’s permission to give the records to that person. The patient can give this permission in advance by signing a consent form.

My patient wants to pick up the records of their children who are in university. Is this permitted?

While there is no legal age for consent to the release of health information, the College and the Information and Privacy Commissioner of Ontario consider age 16 to be a reasonable age. This means that in most cases, parents can request, and are entitled to, copies of the dental records of children under the age of 16. However, you should contact children 16 and older to obtain their consent to release copies of their records to their parents.

If I do not have a duplicator, or processing solutions because I have switched to digital radiography, can I give the patient original film radiographs?

Since dentists are required to keep original records, the easiest way to meet the legal requirement to of providing patients with copies of their dental records is to have the ability to make copies in your office.

If you no longer have processing solutions, you could investigate how to scan film images to convert these to a digital file. You can then send them electronically with proper privacy precautions or give them to the patient on a CD or USB drive. Alternatively, you could arrange to have the radiographs duplicated; for example, at a faculty/school of dentistry.

Does the request have to come from another dentist?

No. Dentists will often help their patients’ request their dental records from another dentist, but the request can also come directly from the patient. Patients have the right to access their dental records and to have copies of them. While the College suggests that patients put their requests in writing, indicating what they would like to have copied and where they would like the records to be sent, the dentist does not require “consent” to release information from a patient’s record to the patient themselves.

Dentists require patients’ consent to release information to someone other than themselves and the College advises written consent in most cases.

What if the written request doesn’t specify which records are required?

If the request is very general, you could contact either the patient or the dentist to whom the records will be sent to find out what is required and whether there is an appointment booked or other urgent need for the dental records.

I have purchased a dental practice and a patient would like his notes from the previous owner’s dental record. Am I required to provide this to him and does it make a difference whether or not I have treated the patient?

In the sale of a dental practice, typically the purchaser assumes the legal responsibility to retain patient records as required by the regulations. This means that the purchaser must keep the originals and provide copies to the patient, if requested.

If a patient continues treatment at the office, even if the charting format changes, the patient’s record is usually considered a continual record. You must retain records for adult patients for at least 10 years after the date of the last entry and for children, at least 10 years after they turn 18. You should not give patients their original records until the legally required retention period has ended.

My patients are having difficulty obtaining copies of dental records from another dental office. How can I help them?

You can assist your patients by preparing a request for the release of information that specifies the following:

1.  Which records the patients require copies of
2. Your office address
3. An indication of where they would like the records sent

The patients should sign these requests. Note that children 16 years of age or older should sign the requests for their own dental records.

My associate has left the office and has sent out a notification to patients. If the patients decide to follow him, do I have to provide the associate with the patients’ records?

If you receive a written request that is signed by the patient directing you to do so, you should provide copies of the dental records to the associate. The associate is not entitled to the patient’s original records, unless that is in accordance with a written contract.

For example, an associate agreement where the associate is the designated owner of specified patient records or an agreement between the dentists that specifies at the end of the associateship the transfer of original records with the consent or written direction of the patient so that the associate assumes the responsibility to retain these as required by the regulations. The College does not provide legal advice and dentists should consult with their own lawyer before entering or executing such agreements.

Can I charge the patient for the duplication of dental records?

The Personal Health Information Protection Act (PHIPA) (section 54) specifies that a health information custodian (or practitioner), such as a dentist, may charge a fee for the duplication and transfer of records if they first give the patient an estimate. PHIPA further specifies that practitioners may charge a fee not exceeding “reasonable cost recovery”.

There is currently no regulation prescribing the fee that may be charged when providing access or copies of a patient’s personal health information. However, the IPC's Order HO-009 provides some guidance on what they consider “reasonable cost recovery”. The Order doesn’t cover all costs, such as when records are present in multiple formats and where portions of the record are stored offsite.  

You may refer to the section on Proposed Regulations and Table 1 on pages 20-22 of the HO-009 - Information and Privacy Commissioner of Ontario document, which includes some specific recommended fees. You may also review page 41 of this FAQ document: PHIPA- FAQ.  

To assist you, the College is able to provide the following general information. This is not meant to cover all potential fee scenarios related to patient records. 

• Dentists are subject to the decisions of the IPC related to charging fees for the release and transfer of dental records, which includes the Order HO-009 decision linked above.    

• In charging a fee, PHIPA requires custodians to first provide the individual with a fee estimate.  

• Fees cannot be set solely based on cost incurred.   

• The IPC has interpreted “reasonable cost recovery” as an amount that is not “excessive” and which does not create financial barriers for patients.   

• PHIPA also permits a custodian to waive all or part of the fee associated with an access request.  

• When determining whether a fee is reasonable, dentists should consider the patient’s ability to pay and whether it would be appropriate to reduce or waive such fee in light of the patient’s financial circumstances  

• It’s important to note that dentists may be subject to IPC and/or RCDSO complaints, if their fees are believed to be “excessive”.     

For further assistance, please contact the IPC directly: 

Information Privacy Commissioner of Ontario  

Toronto Area: 416-326-3333   

Long distance: 1-800-387-0073   

E-mail: info@ipc.on.ca