While the United States continues to push health care providers to adopt electronic health records management programs, it also worries that these programs may be used to game the Medicare and Medicaid reimbursement systems by allowing health care providers to “copy and paste” inaccurate information into records used to support reimbursement claims. The False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., prohibits presenting fraudulent or misleading invoices to a government agency for reimbursement and extends to making or using inaccurate statements or records to support a claim for reimbursement. The United States Department of Justice (“DOJ”) continues to be aggressive in prosecuting both criminal and civil violations of the FCA, with health care billing issues remaining at the forefront of its FCA enforcement campaign to reduce government costs and recoup government money, particularly in light of the hot-button election-year issue of funding and administering the Medicare program.

In yet another example illustrating the DOJ’s focus on health care, the Attorney General of the United States, Eric H. Holder, Jr., and the Secretary for the United States Department of Health & Human Services (“HHS”), Kathleen Sebelius, issued a joint letter to five hospital trade associations on September 24, 2012 (the “Letter”) requesting help from the health care community in promoting the legitimate use of electronic health records to coordinate care and reduce paperwork. This request was intertwined with a clear warning that health care providers should be vigilant in submitting their claims to avoid any appearance of fraud because of the rote use of inaccurate electronic health records to support the claims.

The Letter

The Letter acknowledges that electronic health records are essential to “coordinating care, improving quality, reducing paperwork, and eliminating duplicative tests.” However, the DOJ expressed deep concern that this technology is being used “to game the system, possibly [allowing health care providers] to obtain payments to which they are not entitled.” Specifically, the Letter notes three scenarios where electronic health records may be used illegally: