This is a difficult situation. On one hand, the LCSW brought her own clients and the records are typically considered "owned" by the practitioner and/or the practice. Since the patients likely went with her as she left the practice, the records going with her seems appropriate, so long as everyone was aware. At worst--in which case she did not inform the practice the records were coming with her--it is bad taste. With the services never having been billed, there can be no determination by your office on whether the claims match the record. This would mean that either she needs to provide records and an attestation by her record custodian to the authenticity of those records or she should be billed for the loss of revenue from the practice.
I'm certain that attorneys might have a different set of opinions. Regarding HIPAA, patients are the sole recipients of the right to grieve privacy issues. Since they were her patients, she had every right to have access to those records and may have had a right to retain the records, though it is a clouded and outstanding situation.
Perhaps all of this could be resolved by initiating a discussion with her; if she is reasonable and understands the need of the practice to collect those unbilled charges, she may be able to facilitate copies of those records being retained by your office and might also cooperate with the practice in the event that a payer requested copies . . . not sure.
This is such an interesting situation that I think it makes a terrific case study. How to proceed is a matter of being firm, yet also recognizing that there are probably few absolutes. Also, get with your practice's legal counsel and managers to see what sentiments exist in how to move forward.
