Cloning & Coding: Another EHR Controversy Rises

Just a few months after reports of EHR security breaches, a recent article in The New York Times has caused another stir regarding EHR use.¹ The article spotlighted the controversial issue of EHR “upcoding,” and it appears to have had an impact on regulatory bodies, as both the Department of Health and Human Services (HHS) and the Office of the Inspector General (OIG) have been active in attempting to understand the degree to which note-cloning has affected Medicare payments.

Regulatory Investigation

The primary point of the investigation, as the Times article suggests, is that some clinicians using EHRs may be cloning notes and billing for higher services. An example of this would be if a clinician uses a template note for acne patients and then changes one or two details each time so the notes are not the same. No doubt, “cloning” notes does not constitute sound medical practice, however, the controversy stemming from these recent concerns raises more important questions about the intended use of EHRs. From a regulatory standpoint, it will be difficult to evaluate the longitudinal cost of patients. In other words, it would be easier for regulators to look at one patient's notes over time, rather than look at one note from all acne patients.

In the immediate future, it remains unclear how HHS and other regulatory agencies will react to this story and how it might affect the current atmosphere surrounding the use and adoption of EHRs. In October, several members of Congress lobbied Director of HHS Kathleen Sebelius to halt all funds to the EHR incentive program in order to deal with the issue. Whether incentive dollars will be delayed is difficult to predict; nevertheless, it is clear that the Federal government is taking the issue of upcoding seriously and will likely issue changes to the program in some capacity. Therefore, clinicians should expect the possibility of audits for EHR-related matters.

Implications for Practitioners

Although we cannot predict what the future holds for EHR incentives and regulation based on these recent events, we can draw some conclusions based on what we've seen so far. In a broader sense, the controversy over cloning underscores many of the uncertainties that clinicians have had about the incentive program and the mass adoption of EHRs in the US. While the intent behind the program is respectable, the execution was bound to be haphazard given the shifting conditions on which we define medicine and medical care in the digital age. Apart from any ethical considerations about cloning notes, a very practical issue arises out of where regulators draw the line regarding how cloning is defined. EHRs have a built-in potential to streamline the process of medical care. However, now it appears that regulators are growing uncomfortable with their new reality.

All clinicians should expect greater scrutiny of their EHR records and should avoid any activities that may warrant speculation about whether upcoding is taking place. A note should always reflect the progression of the patient. Though the adjustment to EHRs hasn't been easy for many clinicians, EHRs afford us many conveniences when it comes to synthesizing and streamlining care for patients. But it bears mentioning that EHRs fundamentally make it easier for physicians to “embellish” a note, since they are built on a certain structure and template. In the future, physicians should be wary about taking certain built-in shortcuts that EHRs may allow.

As for matters of regulation, predicting the government's actions is always a challenge. Nevertheless, this note-cloning controversy calls to mind the familiar trial attorney mantra: “If it's not in the chart, it didn't happen!” But in the digital age, the government may be revising this to: “If it's in the chart, it may or may not have happened, and it may or may not have been medically necessary.”

Mark Kaufmann, MD is co-chair of the Dermatology work-group for CCHIT. He is on the Medical Advisory Board of Modernizing Medicine.

1. “U.S. Warning to Hospitals on Medicare Bill Abuses.” By Reed Abelson and Julie Creswell. The New York Times. Published September 24, 2012.