Emerging EHR Risks: When Documentation May Not Be Enough (or Too Much)

by Davis Wright Tremaine LLP

Today’s Electronic Health Record (EHR) technologies feature many tools that help providers practice more efficiently and allow them to spend more time caring for patients. However, the federal government recently has posted bulletins warning providers that certain EHR tools also present fraud risks due to lack of safeguards implemented by providers.

Concerns specifically surround the technologies that make it easy for health care providers to copy and paste documentation from one record to another or pull information forward from a previous visit or another source. For example, a hospitalist can “cut and paste” portions of a note from the previous day’s rounds into the current day’s note. An attending physician can “pull forward” a consulting radiologist’s report into their note and sign the note. In addition, providers can develop documentation templates in their EHR systems where a single click can auto-populate fields resulting in extensive documentation.

However, recent bulletins issued by the OIG, CMS and several Medicare Administrative Contractors (“MACs”) warn that these EHR tools have the effect of “cloning” data entries or auto-generating extensive documentation entries, presenting risks of potential overpayments and raising fraud concerns.

In December 2013, the OIG published a report that addressed the potential for fraud in EHR technology. The OIG surveyed 864 hospitals receiving incentive payments under the Medicare meaningful use program through online questionnaires, eight onsite hospital reviews and interviews of prominent EHR vendors. Although the report did not condemn all uses of pull-forward or copy/paste technologies, the OIG stated that “the copy-paste feature in EHRs can enhance efficiency of data entry [but] may also facilitate attempts to inflate, duplicate, or create fraudulent health care claims.” The report also expressed concern over “check the box” documentation templates, which if not appropriately edited, may be inaccurate. The OIG noted that check the box functions “can produce information suggesting the practitioner preformed [sic] more comprehensive services than were actually rendered.” This report was not the first time the OIG expressed concern over EHR documentation practices. In both its annual work and strategic plans, the OIG listed ensuring the accuracy of documentation as a priority.

Several MACs have stated that Medicare reimbursement shall not be made for services if the underlying documentation is “cloned.” For example, National Government Services, the MAC currently administering Medicare Parts A and B in several Midwestern and eastern states, published a bulletin stating that “[C]loned documentation will be considered misrepresentation of the medical necessity requirement for coverage of services due to the lack of specific individual information for each unique patient” and “[i]dentification of this type of documentation will lead to denial of services for lack of medical necessity and the recoupment of all overpayments made.” Other MACs (Palmetto Government Benefit Administrators (GBA), Cahaba GBA, and First Coast Service Options) have posted similar notices on their respective websites.

Providers who utilize EHR tools are therefore left in a predicament. How can they prove that their documentation was legitimately created using tools such as copy and paste or pull-forward technologies? How can they distinguish between the legitimate use of template language and cloned records indicative of fraud? During a medical record review, there may be no way to discern between the two. An internal hospital auditor, a CMS review contractor or the OIG may have no way of knowing from the medical record itself whether an identical medical record entry was indiscriminately copied and pasted, or whether the entry is an accurate description of the patient’s condition or treatment. Certainly if the record includes data that is unique to the encounter, such as the patient’s temperature, blood pressure or other variable metrics, that would improve the provider’s ability to defend the accuracy of the documentation.

Because providers may not always be able to rely on the actual medical record to demonstrate the propriety of their documentation practices, they should focus on other strategies to demonstrate the accuracy of their medical record documentation. Some of these strategies include:

1. Policies regarding proper EHR documentation practices
In its report, the OIG explained that one of its principle concerns was that less than one-quarter of the hospitals reviewed had policies in place regarding appropriate use of EHR documentation efficiency tools. Providers should therefore consider developing or expanding their documentation guidelines, policies, and procedures to help ensure the accuracy of all medical record documentation and to prevent inappropriate uses of pull-forward, copy/paste and auto-documentation tools. For example, subjects addressed by such policies could include:

  • An orientation and regular periodic training schedule for practitioners and personnel to learn about appropriate and inappropriate uses of pull-forward and copy/paste functionalities;
  • Situations and examples that describe the appropriate use of pulled-forward and copied entries taken from another source;
  • Situations and examples of practices that clearly describe inappropriate or fraudulent use of pull-forward functionality as a basis for increasing the level of E&M code, or indiscriminate copying and pasting;
  • Requirements to review and edit notes pulled from other sources or template forms as necessary to ensure accuracy of each entry;
  • Concerns of over-documentation caused by pull-forward functionality; and
  • The use of scribes or surrogates who have the ability to create entries but require countersignature authorization.

If a provider is ever questioned regarding the use of EHR efficiency tools at its facility, a robust array of guidelines, policies, and procedures may help demonstrate that efficiency tools are used appropriately to generate accurate and complete records.

2. Use of EHR audit logs
An EHR audit log will document and allow administrators to track several important elements of EHR medical record entry that are important to identifying and reducing fraud. The OIG report recommended that providers utilize EHR audit logs functions to track important data related to EHR documentation and the use of efficiency tools. According to the report, fewer than half of providers currently make full use of EHR audit log functionality. For example, the report found that only 61 percent of hospitals tracked each time a user disabled the audit log. Similarly, only 44 percent tracked the method used when data are entered into the EHR (such as direct text entry, speech recognition, automated, copy paste).

The OIG views the data points captured by audit logs to be critical in identifying appropriate methods of EHR data entry. They can demonstrate historical patterns that may reveal data inconsistencies and therefore “to provide the most benefit in fraud protection, audit logs should always be operational while the EHR is being used and be stored as long as clinical records.” Unfortunately, in the real world audit logs are often cumbersome and very difficult to decipher.  The OIG does not provide practical guidance on how a hospital or physician group might use the audit log to monitor for inappropriate activities and for many providers this task may prove daunting.

Providers may also wrestle with the question of how long they should store audit logs. Because medical record documentation is critical to supporting the medical necessity of any service, providers should strive to maintain audit logs for as long as any other clinical information. State laws generally govern how long medical records are to be retained; HIPAA requires covered entities to require certain documentation for six years, and the generally applicable Medicare lookback period is four years. Therefore, providers should incorporate audit logs into their current record retention policies and ensure they comply with applicable Medicare rules, Medicaid standards, and other state law requirements.

3. EHR Tools and safeguards
The functions and capabilities of different EHR products vary widely, and not every EHR contains the safeguards described in this section. However, depending on the specific EHR program, providers should consider taking advantage of the tools and safeguards built into the software that help promote accurate and complete medical documentation practices. The EHR vendor’s willingness to assist the provider in this process varies wildly and the cost of engaging the vendor on these issues may be significant.

Assuming that your software has the functionality and you have room in your budget, there are many EHR safeguards that could help providers improve their use of EHR efficiency tools. For example, some EHR products have the ability to track the method of documentation entry, author of entry, date/time stamp, authentication of entry, etc., and the original source of any imported documentation. Some EHR templates can signal when the forms have not been modified through the appearance of a different screen color or by a watermark across the text. Specialized buttons or drop-down menus on EHR templates can inform users of the provider’s documentation guidelines and reporting requirements. Other alerts can be generated when a copy or paste function is used, warning the EHR user about the associated risks and requirements to ensure accuracy. In addition, hospitals can employ user authorization and access controls and specific data transfer safeguards. The downside risk of modifying your system to identify cloning practices is that the information may be used against you by the government in the event of an investigation. This is particularly troubling if the processes for detecting questionable entries in the medical record cast a broad net and capture legitimate as well as troubling entries. 

Conclusion and takeaways
Providers should be aware government regulators, including the OIG, are subjecting EHR documentation and the use of efficiency tools in EHR systems to heightened scrutiny. Providers should explore how they can best demonstrate the accuracy of their documentation. Accordingly, providers should consider developing protocols regarding EHR documentation practices and training physicians and other personnel on these practices. Providers should consider whether they can effectively make use of the data from their audit logs and reevaluate the process for disabling the audit log function. Lastly, providers should work with their EHR vendors to maximize the functionality of the software to accurately document patient records while incorporating appropriate safeguards into the program.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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