A peer-reviewed, evidence-based journal for clinicians in the field of neuroscience
Issue link: https://innovationscns.epubxp.com/i/555782
[ V O L U M E 1 2 , N U M B E R 7 – 8 , J U L Y – A U G U S T 2 0 1 5 ] Innovations in CLINICAL NEUROSCIENCE 35 R I S K M A N A G E M E N T maintain patient medical records… with sufficient detail to clearly demonstrate why the course of treatment was undertaken." 1 When considering documentation for billing purposes, physicians should be aware of the significance of electronic health records (EHRs), specifically the increased regulatory risks related to coding and data protection, the risks to patient safety, and last, but not least, the risks related to malpractice. HOW TO KEEP YOUR HARD- EARNED MONEY The first regulatory risk of documentation in EHRs is coding risk. The Federal False Claims Act (FCA) protects the federal government from being overcharged or sold substandard goods or services. The FCA imposes civil liability on any person who knowingly submits, or causes to be submitted, a false or fraudulent claim to the federal government. The "knowing" standard includes acting in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim. An example is a provider who knowingly submits claims for services not provided. Civil penalties for violating the FCA may include fines up to three times the amount of damages sustained by the government as a result of the false claims, plus $11,000 per claim filed. FCA criminal penalties for submitting false claims may include fines, imprisonment, or both. When the federal government pays for items or services rendered to Medicare beneficiaries, the federal fraud and abuse laws apply. Many similar state laws apply to services under state-financed programs and under private-pay insurers. What is the relevance of fraud and abuse? Any bill you submit to the federal government includes your certification that the payment requested was earned and that you complied with the billing requirements. There are many examples of improper claims submitted to the federal government, including billing for services that were not medically necessary. For example, a completed and documented complex review of systems that was medically unnecessary (e.g., on your psychotherapy patient that is seen weekly) cannot be billed at the highest code because the services provided with the full exam were not medically necessary. In 2012, an article appeared in the New York Times 2 noting that the federal government is spending billions of dollars in incentives to push hospitals and doctors to use electronic records. However, the move to EHRs may be contributing to billions of dollars in higher costs for Medicare, private insurers, and patients by making it easier for providers to bill more for their services, whether or not they provide additional care. In the article, one doctor expressed concern with a new EHR and said the new system prompted doctors to click a box that indicated a thorough review of patients' symptoms had taken place, even though the exams were rarely performed. Another function let doctors pull exam findings "from thin air" and include them in patients' records. And the article notes, as software vendors race to sell their systems, many are straightforward in extolling the benefits of those systems in helping doctors increase their revenue. One vendor promises that it "plays the level of service game on your behalf and beats them at their own game using their own rules." RISK MANAGEMENT STRATEGY #2: UNDERSTAND THAT JUST BECAUSE THE EHR CAN CREATE DOCUMENTATION SUPPORTING THE HIGHEST BILLING CODE DOES NOT MEAN IT IS APPROPRIATE TO BILL THE HIGHEST CODE Medical necessity determines accurate coding, even if a coding tool suggests billing for a higher level of service. Immediately following the New York Times article, a letter 3 was sent to hospitals from the Department of Health and Human Services (HHS) and the Department of Justice warning Medicare and Medicaid providers that EHRs are not to be used to "game the system" by having the system create extensive documentation and then upcoding. According to the letter, progress notes created with limited space EHR templates are not sufficient documentation. The government also indicated its dislike of check boxes, drop down menus, limited space to enter data, or pre-defined answers. From the letter: "False documentation of care is not just bad care; it's illegal. These indications [of fraud] include potential 'cloning' of medical records in order to inflate what providers get paid. There are also reports that some hospitals may be using EHRs to facilitate upcoding of the intensity of care or severity of patients' conditions as a means to profit with no commensurate improvement in the quality of care...A patient's care information must be verified individually to ensure accuracy: it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments." Then in 2013, the HHS Inspector General issued a report 4 indicating providers have failed to implement fraud protection safeguards in EHR technology. The report included two