Cutting and pasting (aka cloned) EHR portions can lead to false claims

It is well known that cutting and pasting portions of one patient chart into another patient chart is not a best practice. “Cloning refers to copying and pasting notes from one patient encounter to another without updating the information.”

What may be less known is that the U.S. Department of Health and Human Services – Office of the Inspector General (HHS-OIG) and the U.S. Department of Justice (DOJ) have assessed penalties in situations where cloned patient progress notes (i.e., those that were cut and pasted from one recorded into another record) for the knowing submission of false and fraudulent claims. As practitioners in the False Claims Act are (or should be aware), the government’s prior enforcement actions are one factor in determining materiality. See United States ex rel. Lemon v. Nurses to Go, Inc., Case No. 18-20326 (5th Cir. 2019) (citing Escobar). With this background in mind, here are a few examples of government enforcement actions involving “cut and paste” or “cloning”.

On January 7, 2016, HHS-OIG announced a self-disclosure by a cardiology group. Specifically,

After it self-disclosed conduct to OIG, Somerset Cardiology Group, P.C. (Somerset), New Jersey, agreed to pay $422,741.50 for allegedly violating the Civil Monetary Penalties Law. OIG alleged that Somerset knowingly presented claims to Medicare for items or services that it knew or should have known were not provided as claims and were false and fraudulent. Specifically, OIG contended that Somerset cloned patient progress notes, as well as improperly coded and submitted for payment to Medicare E&M services that used current procedural terminology codes to reflect a higher level of service than the cardiologists actually preformed resulting in higher payments by Medicare to which Somerset was not entitled.

In Program Integrity Issues in Electronic Health Records: An Overview, the Centers for Medicare and Medicaid Services (CMS), highlighted the following:

Health care professionals have stated that copying and pasting notes can be appropriate and eliminate the need to create every part of a note and re-interview patients about their medical histories. However, HHS-OIG identified ‘illegitimate use of cut-and-paste cording cloning’ as a problem. HHS-OIG’s 2016 Compendium of Unimplemented Recommendations found that only about one-fourth of hospitals had policies governing the use of the copy-paste function in EHR software. Defaulting or copying and pasting clinical information from different health care records of the same patient facilities billing at a higher level of service than was actually provided. (emphasis added).

With EHRs offering more “bells and whistles” ensuring that adequate technical, administrative, and physical safeguards are in place, which includes comprehensive training and policies and procedures, can be critical to avoiding either Civil Monetary Penalties and/or False Claims Act liability.

Rachel V. Rose, JD, MBA, advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases.