Record Keeping Revisited: Are Your Patient Records Compliant?

Added: 06/21/10 

  Record Keeping Revisited:

Your Patient’s Charts May Not Be Compliant

By Boyd W. Shepherd, D.D.S., J.D.[*]

            With the exception of being persistently attentive to and knowledgeable of the Texas law that regulates the practice of dentistry, the number one item that a Texas dentist can do to reduce their risk in practice, protect their license, and maintain compliance with the Texas Dental Practice Act and State Board Rules and Regulations, is to know and put into practice the requirements of Rule 108.8 of the Rules and Regulations of the Texas State Board of Dental Examiners.

            Within this one rule, there are several elements to a dental chart that are mandatory under Texas law.  Since 1994, in representing numerous dental practitioners before the Board, I continue to find that Texas dentists who suffer disciplinary actions against their licenses as a result of violating this rule have done so by either (a) being completely unaware of this rule’s requirements, (b) knowing the rule and its requirements, but by not putting these requirements into practice, (c) misinterpreting the rule and its requirements, or (d) not routinely implementing all of its requirements.  In the past year, in several cases of which I have been counsel for dentists before the Board, an additional area for potential violation has developed, which are records that do not adequately state or describe the information required, despite the presence of notations or information that would otherwise appear to comply with the record keeping rules.

            To review, Rule 108.8 of the Rules and Regulations of the Texas State Board of Dental Examiners can be subdivided into parts (a) through (g).  For purposes of this article, we will be looking at parts (b) and (c) only, as these subsections address the requirements for the contents of a dental chart.  These subsections read as follows:

“(b) A Texas dental licensee practicing dentistry in Texas shall make, maintain, and keep adequate records of the diagnoses made and the treatments performed for and upon each dental patient for reference, identification, and protection of the patient and the dentist.  Records shall be kept for a period of not less than five years.  Records must include documentation of the following:

(1) Patients name;

(2) Date of visit

(3) Reason for visit;

(4) Vital signs, including but not limited to blood pressure and heart rate when applicable in accordance with §108.7 of this title (relating to Minimum Standard of Care, General).

(5) If not recorded, an explanation why vital signs were not obtained.

(c) Further, records must include documentation of the following when services are rendered:

(1) Written review of medical history and limited review of medical exam;

(2) Findings and charting of clinical and radiographic oral examination;

(A) Documentation of radiographs taken and findings deduced from them, including radiograph films or digital reproductions.

(B) Use of radiographs at a minimum should be in accordance with guidelines set forth on "Dental Radiographic Examinations" published by the United States Department of Health and Human Services, October 1987, as amended or reprinted from time to time.

(3) Diagnosis(es);

(4) Treatment plan, recommendation, and options;

(5) Treatment provided;

(6) Medication and dosages given to patient;

(7) Complications;

(8) Written informed consent that meets the provisions of §108.7(6);

(9) The dispensing, administering, or prescribing of all medications to or for a dental patient shall be made a part of such patient's dental record. The entry in the patient's dental record shall be in addition to any record keeping requirements of the DPS or DEA prescription programs.

(10) All records pertaining to Controlled Substances and Dangerous Drugs shall be maintained in accordance with the Texas Controlled Substances Act.

(11) Confirmable identification of provider dentist, and confirmable identification of person making record entries if different from provider dentist;

(12) When any of the items in paragraphs (1) - (11) of this subsection are not indicated, the record must include an explanation why the item is not recorded.”

         Certainly, that is a lot of information to be responsible for, so let’s break this rule down.  Sub-section (b) of Rule 108.8 is primarily what I call the “common sense” section, requiring documentation of the patients name, the date of visit, the reason for the visit, and vital signs in accordance with Rule 108.7, entitled “Minimum Standard of Care,” which requires the recording of the blood pressure and heart rate at the initial appointment, as well as recording same “as often as a reasonable and prudent dentist would do so under the same or similar circumstances.”  Finally, sub-section (b) of Rule 108.8 states that if the blood pressure and heart rate are not recorded in accordance with Rule 108.7, then you must include an explanation why these vital signs were not obtained.  This fifth chart requisite of Sub-section (b) of Rule 108.8 is often over-looked by Texas dentists and continues to produce violations of the record-keeping rules.  Despite being clear and straight forward, it is never over-looked by the State Board investigator or attorney when reviewing the patient chart during an investigation of a complaint.

           Believe it or not, I continue to see dental records in Board related cases of dentists that fail to record either the patients name, the date of visit, or the reason for the visit, or some combination of these three basic charting elements.  Keeping in mind that the task of chart creation and maintenance is typically delegated, this could offer some explanation for the lack of this information in a patient chart.  However, as the licensed dentist is ultimately responsible for this information being properly recorded, the failure of an assistant or other office employee to record this information is not a defense to the violation.

            More often, the charting violations arising out of sub-section (b) of Rule 108.8 stem from failing to record the blood pressure and heart rate at the initial appointment, and also to do so “as often as a reasonable and prudent dentist would do so under the same or similar circumstances.”  This information is also required under Rule 108.8, sub-section (c)(1).  Most dentists are aware of the necessity to record this information at the time of the initial visit, but fail to make additional entries over the course of treatment.

            The reason this rule is often violated is because the time frame within which to record this information is not a time frame specifically set out in the rule.  Rather, the frequency of recording this information is dictated by the language from Rule 108.7, which is “as often as a reasonable and prudent dentist would do so under the same or similar circumstances.”  Thus, the frequency is dictated, at a minimum, by the patient’s past and current medical history and status, as well as the treatment that is being performed on a per procedure basis.

            For example, if a patient presents as a young, healthy athlete with no medical history of systemic disease or problems, and all that they require are relatively straight-forward restorative procedures after a comprehensive yet non-invasive cleaning, then the initial vital signs will suffice assuming there is no change in the medical status over the course of treatment.  On the other hand, if a middle-aged or elderly patient presents with a complicated medical history, and advises of current medications for heart and/or other systemic conditions, and they require one or more extractions or an otherwise invasive procedure, the “reasonable and prudent dentist” should arguably take the vital signs at each appointment prior to any treatment.  These two extreme examples illustrate that the rules allow you to be the doctor, and require you to keep your records accordingly.

            Sub-section (c) of Rule 108.8 offers additional detailed chart requirements, yet is often violated due to misinterpretation or insufficient compliance.  One item not specifically listed, but nevertheless required, is periodontal charting (preferably on a graphic and entitled chart page devoted to this information).  Even in the event of excellent periodontal health, there must be some indication of this fact within the progress notes at a minimum, and the information should be updated often.  This is the best of example of a potential violation of Board rule requirements that are not specifically stated within the rule, but are nonetheless expected under the interpretation of the rule as being within the “standard of care,” in accordance with Rule 108.7, “Minimum Standard of Care.”

            Other requirements of sub-section (c) that are frequently violated include the failure to  include or adequately describe the diagnosis made, or the treatment plan, which must include the specific recommendations as well as the options or alternatives to those recommendations.  Recently, in several cases of which I have been counsel for dentists before the Board, there has been an emphasis on the lack of statements of the diagnosis or the treatment options/alternatives in addition to the treatment recommendations, even in the presence of a written informed consent that meets the provisions of §108.7(6) (also required by this rule).  In other words, your progress notes should include the recording of your discussion with your patients regarding treatment options and alternatives in addition to the treatment recommendations within the treatment plan, over and above the same information articulated in an otherwise compliant informed consent form that is signed and dated by the patient at the time of treatment.

            In fact, this would also ensure compliance with Rule 108.2, Fair Dealing, which states that “...the dentist shall advise a patient, before beginning treatment, of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions... Such advice shall include, at a minimum:  (1) the nature and extent of the treatment needed by such patient; (2) the approximate time required to perform the recommended dental treatment and services; (3) the terms and conditions of the payment of his fee; and (4) any further or additional service or returns by the patient or adjustments, repair, or consultation and the time within which this shall occur.”

            With regard to informed consent as required by Rule 108.7(6), compliance requires that you obtain informed consent that is specific for each treatment provided “where there is a reasonable risk of complications,” and for each date of treatment on the date that the treatment is actually provided, signed and dated by the patient at the time of treatment.  In other words, a general informed consent that lacks adequate detail, or that is not provided and obtained on the actual date of treatment, is not compliant, even if the patient signed the informed consent within a recent period of time relative to the date of treatment.

            Sub-section (c) of Rule 108.8 also requires that your record the treatment provided, which most if not all dentists do;  however, more often than not, this information tends to be written in short-hand and severely abbreviated, resulting in violations as a result of not being adequately informative to potential subsequent providers or to the State Board.  Again, in several recent cases of which I have been counsel for dentists before the Board, it has become clear that, conservatively speaking for the purpose of managing your risks and staying compliant with the law, your progress notes must include great detail of the services and procedures rendered, including any medications and instructions given, such that the overall course of the specific treatment provided and the events and discussions that occurred can be reasonably re-constructed from a reading of the progress notes for each respective appointment.

            As a final point, to adequately manage your risk against negligence claims as well as potential State Board complaints against your license, practical advice would include reviewing these rules and requirements with your staff often, making sure that not only you and they are educated on these rules, but that you and they are on the same page on your office policies and procedures with regard to record keeping.  As record keeping is often delegated, education of your staff will ensure that they do not create problems for you, the licensed dentist, in their otherwise good faith efforts to carry out their work on your behalf.

            Ultimately, your patient’s records are the only window that your patients, their legally authorized representatives, and/or the State Board have into the treatment you provide your patients.  The good news is twofold, in that the rules tell you what the records must include, and you are in control of the inclusion of the information, and therefore what information is viewed through the window of the dental record.  The goal is to include all of the required information in a consistent manner, such that record keeping violations are avoided altogether.