Editor's Corner: EHR copy, paste could land you in hot water

Fraud

marla hirschWe knew this day would come. Those handy electronic health record cut, copy and paste features can cause a provider to be in violation of the False Claims Act.  

Louisville, Kentucky-based home healthcare provider MD2U Holding Company and its related entities have agreed to pay $3.3 million plus a percentage of net income to settle allegations that they violated the False Claims Act by taking advantage of the cut, copy and paste function of its EHRs to submit false Medicare bills to the government. Evidently MD2U cut, copied and pasted notes from visits that occurred weeks, months and even years before the current encounter, creating the illusion that clinicians were performing a “significant” amount of work when they really weren’t.

This manipulation was part of the company’s overall scheme to obtain more money than to which it was entitled, including upcoding and billing for medically unnecessary services.

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But it’s telling that the Department of Justice honed in on the use of EHRs--or the misuse--as part of its complaint against the provider.

The government is now looking at the use of these key functions, which save providers considerable time, as part of its overall investigation into fraudulent billing.

The DOJ announcement does not indicate whether this investigation was launched by an individual whistleblower, as was the case for a lawsuit earlier this year. In that case, a patient of Kettering Health System sued, claiming that the provider violated the False Claims Act because Kettering didn’t meet the Meaningful Use objective to protect patient information. Her claim failed--but mainly because she couldn’t recite the exact amount of the Meaningful Use attestation claim submitted for payment.

In contrast, it’s very easy to find that cut, copy and paste has created errors in the medical record leading to inaccurate or false billings. Too much gets copied; the material is pasted into the wrong record; the list goes on. It’s also easy for the many people with access to the EHR to quantify a false claim, opening the door to full scale review. These days, the government doesn’t even have to review them all manually; it can use statistical sampling and extrapolation.

The Office of Inspector General and others have warned for years that EHR billings could potentially be a hot area of investigation. In a way it’s sort of surprising that we haven’t seen the first such settlement sooner. There are likely a number of these cases percolating out there. 

Moreover, the False Claims Act has become the tool of choice for both the government and whistleblowers, who can receive up to 25 percent of the amount recovered and have increasingly been bringing these lawsuits even if the government opts not to join in.  At the same time, the penalties for violating the False Claims Act are about to skyrocket after Aug. 1. In a rule published June 30, the minimum penalty for a False Claims Act violation will increase from the current $5,500 to $10,781; the maximum increases from $11,000 to $21,563. That’s per claim.

So cut, copy and paste is not to be taken lightly. One error can be expensive. 

Providers, you’ve been put on notice.

 - Marla (@MarlaHirsch and @FierceHealthIT)

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