Cloned Notes Can Lead to Legal Trouble!In a recent Part B newsletter, a question came in regarding the use of clones notes. Per their response, cloned notes can get your practice into legal trouble.

We know that if we’re not careful our cloned notes can lead to inappropriate data in an encounter record, which in turn can lead to denials and takebacks. But can you be prosecuted for fraud because of clines notes?

It’s true that cloned notes, documentation automatically brought forward from encounter to encounter to save time, can get to be a habit that leads to provider neglect in checking to be sure those notes are still relevant.

When the documentation isn’t relevant, is contradictory, or incorrect, it can affect coding and billing. If this is revealed in an audit it can lead to having not just one but a series of claims thrown out.

While the experts with whom Part B News spoke couldn’t identify a case that hinged on cloned notes as evidence of fraudulent or false claims. They did, however, state that cloned notes are frequently cited in evidence in prosecution cases such as these.

  • In 2016, for example, the Department of Justice (DOJ) announced a settlement with MD2U, a regional provider of home-based care in Kentucky, on charges including that they “cloned medical records (a cut, copy, paste electronic program) in order to justify patient visits” that were not otherwise justified. In the complaint, the U.S. Attorney for the Western District of Kentucky alleged that “the ability to migrate notes from visits that occurred weeks, months or even years prior to the current patient encounter created the illusion that MD2U’s NPPs [non-physician practitioners] were performing a significant amount of work during their patient encounters when, in fact, they were not.”
  • Or take the DOJ case against Ultimate Care Medical Services, resolved in 2019 for $1.4 million. Among the particulars in the complaint was that the “ability to easily clone notes enabled Ultimate Treatment Center to create the illusion that its practitioners were performing E/M services at dosing visits when, in fact, they were not,” and that one particular addiction patient’s notes were copied from encounter to encounter “with the same punctuation and capitalization errors, the same methadone dosage, and the same warning of the diversion risk posed by [the patient] self-administering methadone at home” even after the patient failed a drug test. Even when cloning isn’t a cause of action, cloned notes abuse “can go to character and competence of the physician” in a fraud prosecution, says Faisal Khan, senior legal counsel at Nixon Gwilt Law in Cleveland, because it may be used as evidence that the physician was “sacrificing patient care time and effort in furtherance of his/her plan to maximize/increase billings.”

The problem with cloned notes is that they are not apparent on a claim, in the same way that misused modifiers or the absence of documentation isn’t know solely from claim submission. That being the case, you may not be able to identify the problem unless you do regular provider audits.

Here are some examples of how this is being discovered:

  • Payers, as well as providers, may get a clue from customer service complaints. If a patient complains that the provider spent five minutes with them and there was a high-level bill, then it’s possible the record may show a lack of serious complaints, documentation, and/or time spent to support the level of care.
  • Insurers are starting to put their complaint management software to pick up these trends in complaints
  • Patients themselves may also notice and report bizarre, cloned notes when they review their own records, either through requests or programs such the OpenNotes initiative.

Here are some tips to keep your practice safe:

  • Rather than wait for fate to guide you, conduct regular provider chart audits. Regular audits can uncover copy/paste/clones note issues.
  • Establish regular coding and billing audits to review not only if the documentation supports the codes billed but, is there evidence that portions of notes are being copy/pasted/cloned inappropriately.
  • Also running bell-curve analytics on E/M services you may find outliers, which is a clear signal to audit the documentation.
  • Many EHR systems have built-in and customizable safeguards to ensure that cloned notes are validated by the charting provider. The key is to institute and enforce internal policies to ensure providers are following these safeguards and reviewing the cloned portion of the note for current accuracy.

*Reference: Part B News; August 16, 2021, Vol.35 Issue 32