“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
I just returned from Miami and a visit with the FBI, OIG and DOJ to negotiate about a client’s case (that I can’t talk about.) I can tell you we stayed in the hotel Fontainebleau where they filmed the James Bond scene in Goldfinger.
I had never been to Miami, but having watched way too many episodes of Miami Vice in the 80’s, I was half expecting that the hotel soap would be at last 20 percent illegal narcotics. But no. Miami is just a lovely place; I didn’t see any gangsters or international spies.
This did get me thinking, however, that one of the big the differences between narcotics smugglers and Medicare law breakers (which could mean anything which the OIG declares to be “law breaking”), is that narcotics outlaws have better sense than to hazard illegal activity– where the federal government is the intended customer.
It is super hard to get away with much, when most of what the government needs to know about unlawful claims is giftwrapped and delivered to their door, on the HCFA 1500 claim form. The rest of what the government needs is in the medical records that must be preserved for 7 years, lest a doctor have his NPI number revoked by CMS (for up to 10 years) under 42 C.F.R. § 424.535(a)(10).
Most medical records mistakes are not crimes, but can be civilly-actionable errors, that can be very, very costly.
Trouble with Telemedicine and MSOs. If you are a doctor, an attorney representing doctors who wish to try telemedicine platforms, it might sound tempting to turn the administrative headaches over to an online management platform and think no more of it.
Please understand, many telemedicine companies and Management Services Organizations are new to this nascent telehealth industry and have absolutely no idea what the rules are for doctors and medical record keeping. The doctor can do everything correctly, but a chain is only as strong as its “weakest link.”
Last year, I defended a doctor at the Texas Medical Board, who signed on with a telehealth company, which stored records electronically in the cloud. But nobody told the $12 an hour receptionist this.
When investigators called the telehealth company to ask to review certain medical records, the receptionist looked around the room, and not seeing any, told investigators: “I don’t think we have any medical records here.” ( Notice: When the complaint was filed, It wasn’t the receptionist nor the telehealth platform who ended up before the medical board.)
What needs to be in a medial record? CMS and most states require that records be kept for 7 years in most cases. As to the contents of the records, take a look at 22 TAC 165.1 as a good roadmap (just Google it). MSOs and telemedicine companies must be prepared to produce medical records containing the following:
a) Contents of Medical Record. Regardless of the medium utilized, each licensed physician of the board shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible. For purposes of this section, an “adequate medical record” should meet the following standards:
(1) The documentation of each patient encounter should include:
(A) reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;
(B) an assessment, clinical impression, or diagnosis;
(C) plan for care (including discharge plan if appropriate); and
(D) the date and legible identity of the observer.
(2) Past and present diagnoses should be accessible to the treating and/or consulting physician.
(3) The rationale for and results of diagnostic and other ancillary services should be included in the medical record.
(4) The patient’s progress, including response to treatment, change in diagnosis, and patient’s non-compliance should be documented.
(5) Relevant risk factors should be identified.
(6) The written plan for care should include when appropriate:
(A) treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills, and dosage;
(B) any referrals and consultations;
(C) patient/family education; and
(D) specific instructions for follow up.
(7) Include any written consents for treatment or surgery requested from the patient/family by the physician.
(8) Include a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient.
(9) Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.
(10) All non-biographical populated fields, contained in a patient’s electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.
(11) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.
(12) Salient records received from another physician or health care provider involved in the care or treatment of the patient shall be maintained as part of the patient’s medical records.
If a telemedicine company or an MSO offers to handle the administration of records, doctors, not laymen, are responsible for complying with the law.