Representing Nursing Homes

Michael B. Kornhauser, Esq.

Fuerst Ittleman David & Joseph

Suntrust International Center

One Southeast Third Avenue

Suite 1800

Miami, Florida 33131

mkornhauser@fidjlaw.com

(305) 350-5690

www.fidjlaw.com

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  • Michael B. Kornhauser

How Long Must Florida Nursing Homes Keep Records?

Updated: Apr 18, 2019

A guide to records retention laws impacting Florida nursing homes.

Let’s just get right to it. This blog provides a non-exhaustive summary of key records retention laws related to Florida nursing facilities. Scroll to the end for a downloadable PDF (in lieu of a 60 Second Takeaway video) which summarizes the records retention information discussed in this blog.

1. Medical Records

A Florida nursing home must retain all medical records for a period of five (5) years from the date of discharge. In the case of a minor, the records must be retained for three (3) years after a resident turns eighteen (18). See 59A-4.118, Florida Administrative Code.

2. Medicaid-Related Records

A Florida nursing home must maintain all Medicaid-related records for a period of five (5) years. See Florida Statute § 409.907(3)(c).

3. Admissions Agreements

A Florida nursing home must maintain each resident’s admissions agreement for five (5) years after its expiration. This requirement appears to comport with the medical records requirement above. See Florida Statute § 400.151.

4. Survey Results and Investigations

A nursing home must post the results of its most recent facility survey in a place readily accessible to residents, family members, and legal representatives. A nursing home must also have reports with respect to any surveys, certifications, and complaint investigations made regarding the facility during the three preceding years, and any plan of correction in effect with respect to the facility, available for any individual to review upon request. See 42 C.F.R. § 483.10(g)(10)-(11).

5. Records of Cost Reports and Inspection Reports Filed With, Or Issued By, Any Governmental Agency

Each nursing home facility licensee must maintain all cost and inspection reports pertaining to the facility that have been filed with, or issued by, any governmental agency for not less than five (5) years following the date the reports are filed or issued. See Florida Statute § 400.191(3).

6. Documentation Regarding HIPAA Compliance

While the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) does not require nursing homes to retain resident records for any specific period of time, it does require nursing homes to implement certain administrative, technical, and physical safeguards for resident records that are retained (pursuant to state law) by nursing homes. These policy documents must be maintained for a period of six (6) years from the date of their creation or the date when they were last in effect, whichever is later. See 42 C.F.R. § 164.316(b).

7. Payroll Records (pursuant to the Fair Labor Standards Act (FLSA))

Under the Fair Labor Standards Act, payroll records must be maintained for three (3) years. Payroll records are documents related to paying your employees and including the following: (a) names, addresses, and Social Security numbers of all employees; (b) workweek information (e.g., start and end dates); (c) hours worked each day/total hours worked each week; (d) how each employee is paid (e.g., hourly, salary); (e) pay rates; (f) overtime earnings (if applicable); (g) additions to or deductions from wages; (h) total wages paid each period; (i) payment dates and pay periods; (j) Forms W-2 and W-3; (k) Forms W-4 and W-5; (l) Forms 941 or 944; (m) records of benefits; (n) collective bargaining agreements; and (o) sales and purchase records. See 29 C.F.R. § 516.5 (“Records to be preserved 3 years”). Records on which wage computations are based should be retained for two (2) years. These records include time cards, piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. See 29 C.F.R. § 516.6 (“Records to be preserved 2 years”). See also U.S. Department of Labor, Wage and Hour Division, Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA), Revised July 2008.

8. Employment Records (pursuant to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA))

Under Title VII of the Civil Rights Act of 1964, the ADA, the GINA, employers with at least fifteen (15) employees must retain requests for reasonable accommodations, applications and other personnel records relating to hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship one (1) year from making the record or taking the personnel action, whichever occurs later. See 29 C.F.R. § 1602.14 (“Preservation of records made or kept”). Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, or GINA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. See 29 C.F.R. § 1602.14.


Under ADEA record keeping requirements, employers with more than twenty (20) employees must keep payroll records or other records for each employee which contain the employee’s (a) name; (b) address; (c) date of birth; (d) occupation; (e) rate of pay; and (f) compensation earned each week for three (3) years. See 29 C.F.R. § 1627.3(a). Employers must also retain for a period of one (1) year from the date of the personnel action to which any records relate all (a) job applications; (b) resumes; (c) other employment inquiries related to a response to an job advertisement; (d) records pertaining to the failure or refusal to hire any individual, (e) promotion; (f) demotion; (g) transfer; (h) selection for training; (i) layoff, recall, or discharge of any employee; (j) job orders submitted by the employer to an employment agency or labor organization for recruitment of personnel for job openings; (k) test papers completed by applicants or candidates for any position; (l) the results of any physical examination where such examination is considered by the employer in connection with any personnel action; and (m) any advertisements or notices to the public or to employees relating to job openings, promotions, training programs, or opportunities for overtime work. In addition, every employer shall keep on file any employee benefit plans such as pension and insurance plans, as well as copies of any seniority systems and merit systems which are in writing, for the full period the plan or system is in effect, and for at least one (1) year after its termination. See 29 C.F.R. § 1627.3(b). Keep in mind, employment agencies have separate and distinct records retention requirements under the ADEA. See 29 C.F.R. § 1627.4.

9. Employment Taxes

Keep all records of employment taxes for at least four (4) years after filing the 4th quarter for the year. Such records include (a) the business employer identification number (EIN), (b) amounts and dates of all wage, annuity, and pension payments, (c) the fair market value of in-kind wages paid, (d) names, addresses, social security numbers, and occupations of employees and recipients, (e) copies of employee Form W-2s that were returned to you as undeliverable, (f) dates of employment, (g) periods for which employees and recipients were paid while absent due to sickness or injury and the amount and weekly rate of payments you or third-party payers made to them, (h) copies of employees' and recipients' income tax withholding allowance certificates (Forms W-4, W-4P, W-4S, and W-4V), (i) dates and amounts of tax deposits you made, (j) copies of returns filed, and (k) records of fringe benefits provided, including substantiation. See Internal Revenue Service, Employment Tax Record-Keeping.

10. Employment Records (pursuant to the Family and Medical Leave Act (FMLA))

The FMLA requires covered employees to retain records consistent with those regulations found in the FLSA. See 29 C.F.R. § 825.500.

11. Job-Related Injuries (pursuant to the Occupational Safety and Health Administration (OSHA))

OSHA requires that records of job-related injuries and illnesses be kept for five (5) years. See 29 C.F.R. § 1904.33. In addition, records related to medical exams along with toxic substances and blood-borne pathogen exposure must be retained for thirty (30) years after termination of employment. See 29 C.F.R. § 1910.1020(d)(1)(i).

12. Florida's Workers' Compensation Law

Employers subject to Florida's Workers' Compensation law must maintain the following records for the current calendar year to date and for the preceding two (2) calendar years: (a) identity, organization, and occupation records (e.g. IRS Form 575A, articles of organization/incorporation, fictitious name registration, occupational licenses, and trade licenses); (b) employment records (e.g. documents which identify the employee's name, Social Security number, each day, month, and year or pay period when the employer engaged the person in employment, the amount of remuneration paid or owed to the employer, checks for salary, wages, or earned income, Form 1099 and Form W-2, employment agreements, and employment/unemployment reports filed pursuant to Florida law; (c) tax records; (d) account records (e.g. monthly, quarterly, or annual statements for all open or closed business accounts established by the employer, or on its behalf, with any credit card company or financial institution); (e) disbursements (e.g. journal of check and cash disbursements and, copies of each cashier's check, bank check, and money order); (f) subcontractor invoices (e.g. all invoices received from a subcontractor for work or services performed); (g) workers' compensation insurance policies; (h) premium audit documents provided by the carrier to the employer, along with supporting documentation; (i) contracts (e.g. contracts with general contractors, subcontractors, independent contractors, or employee leasing companies that specify the terms of reimbursement and scope of work, along with any records which establish the statutory elements of an independent contractor for each worker entitled to such designation. See 69L-6.015, Florida Administrative Code.

13. Florida's Child Labor Law

Any business that hires, employs, or suffers to work any child, must obtain and keep on record, during the entire period of such employment, proof of the child's age. This requirement shall be satisfied by (a) a copy of the child's birth certificate; (b) a copy of the child's driver's license; (c) an age certificate issued by the district school board of the district in which the child is employed, certifying the child's date of birth; or (d) a photocopy of a passport or visa which lists the child's date of birth. See Florida Statute § 450.045.


Have a question? Is there a type of record that should be included in this list that isn’t? Leave a comment below or send a message.


Among other things, Michael B. Kornhauser, Esq. counsels nursing homes on compliance with Federal regulations and Florida laws. If you have any questions, feel free to contact him.

Representing Nursing Homes
Discussing legal issues facing skilled nursing facilities throughout the state of Florida.