The Health Law Sidebar
April 2, 2020

How long should Medicaid and Medicare Providers Retain Medical Records: Six Years or Ten Years? The Answer may Surprise You…

Previously, some medical providers may have kept their medical records for six years based on their understanding of the Medicaid and/or Medicare record retention requirements. However, there are circumstances where six years is simply not long enough, and that situation arises under the federal False Claims Act. Last year, the United States Supreme Court issued a decision that clarified the applicable statute of limitation (the time within which a provider may be sued) to a private suit brought under the federal False Claims Act. See Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507 (2019) In Cochise, the Supreme Court held that the statute of limitations for a qui tam action (an action brought by a private party or whistleblower on behalf of the government) may be up to 10 years regardless of who initiated the action. Thus, Medicaid and Medicare providers are advised to maintain their records for a minimum of 10 years in order to avoid potential liability and ensure they can properly defend themselves against all False Claims Act whistleblower cases.

The ruling of this case carries implications for providers who will now have to create longer record retention policies to comply with the longer statute of limitations that a False Claims Act case presents. Failure to retain records for the entire 10 year period may leave providers open to potential liability since, once a record is destroyed, it will be extremely difficult for a provider to defend against a whistleblower’s claim.

Should you have any questions please contact David R. Ross, Senior Shareholder, at (518) 312-0167 or via e-mail at dross@oalaw.com. Law Clerk Meghan Tuma contributed to this article.