November 14, 2017

Defective and Counterfeit Electronic Health Records: Opinions, Observations, and Hopes from 15 Years (and Counting)

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In order to make healthcare effective, safe and affordable, clinical organizations must ensure complete and accurate clinical records.

In preparation for my remarks on the Talk Ten Tuesdays broadcast of Oct. 31, 2017, I reviewed my own time served on this topic. I also reflected on the many people I’ve met over the years who have been attempting to drive improvements, some for much longer than me.

We all at times find ourselves amazed at the apparent ineffectiveness of our efforts to bring even the smallest improvements in electronic patient records systems’ safety, security, and reliability to the electronic health record (EHR) marketplace. This is because, currently, the market (and our government), for all their lamenting, show little sign of demanding safety, security, and reliability from EHR system vendors. Strong systems have disappeared while weak systems persist and thrive (and cheat). This non-innovation, in the absence of controls, hasn’t yet undermined the industry’s defense for continuing EHRs’ current unregulated state.

That’s what it looks like from the high-altitude point of view. More importantly and more practically, we had the previously referenced Talk-Ten-Tuesdays broadcast, wherein listener “Robert” described his counterfeited emergency department record, followed by some commentary. It struck me that one of his main points seemed lost. It’s a basic, concrete one: an emergency medicine physician, a credentialed medical professional with a duty to patient service, knowingly authenticated a false record – and, in addition to that, defrauded whoever paid the bill.

In basic terms, that clinician placed herself or himself in harm’s way, and the hospital in harm’s way as well, as each is obliged by law to establish and maintain business records and clinical records. Furthermore, counterfeit records reduce confidence, harming Robert and all patients. The duty of clinical organizations and clinical professionals to ensure complete and accurate clinical records is foundational to making healthcare work, to making it effective, affordable, and safe. As long as those foundations are on sand, all aspirations will remain unfulfilled.

Regarding your program title, “Documenting the Case of False or Nonsensical Medical Records,” peer-reviewed literature has sufficiently done this. Furthermore, a reading of U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) cases closed reports shows references to fabricated records and forged documents.

Common parlance, like record plagiarism and authorship falsification, is increasingly understood as “mis-attribution.” Copying in EHRs isn’t the problem. Copying with accurate, visible attribution is a time-saver.

Copying with false attribution (or with no attribution) is the problem. Every time you hear a reference to bad electronic health record (EHR) functions, think “misattribution,” think false representations, such as that a service was provided or a record was created (falsely) by a given individual on a given date or time. The underlying defect is misattribution and misattribution is a lie. A misattributed record is a counterfeit record when it’s used as a payment tool, whether it’s written in pen, dictated in voice, or fabricated using an EHR.

Beyond misattribution, there’s the nonsense record. This is an old concept, usually a record so clearly ridiculous that it makes no sense: the record that cannot be true. The patient with chief complaint of headache with a review of systems that says no headache. The patient whose gender changes back and forth from visit to visit, whose vital signs are identical over days or weeks, where you may even see a statement at the end stating that the clinician signed it without reading it. Again, these are nonsense records, since they cannot be true, complete, and accurate.

I understand that clinical organizations are having a hard time paying bills. False, corrupt, or incompetent records aren’t solutions; they’re current harms, future risks, and future costs. By the way, the federal government has at least two studies showing that EHRs are being used to falsify data, corrupting our future healthcare financing schemes, too.

We all yearn for the day when measurable benefits eclipse the associated difficulties and costs. Meanwhile, there are so many un-kept promises, including one from the HHS Office of the National Coordinator to address anti-fraud requirements, as of May 2017 four and one-half years past. There are the unenforced audit trail requirements included by reference in HITECH (Health Information Technology for Economic and Clinical Health Act) from eight years ago, and under HIPAA (Health Insurance Portability and Accountability Act) from 20 years ago, also never specified or enforced. Promises un-kept are particularly corrosive when they’re promises made by law or to law enforcement, further undermining confidence in both change and in the likelihood of change. Restoring confidence and increasing the likelihood of positive change, must be our first order of business today.

For me, as a clinician, a pinnacle of EHR failure is records whose unfitness is revealed when honest clinicians call on the EHR to help them, defend them, and it can’t. This becomes especially evident when basic protections for authentic records are defective, in particular audit functions that are non-compliant with those unenforced and under-enforced audit requirements under HITECH and HIPAA.

Robert’s story is too common. I know patients who have followed up with clinical facilities, their insurers, or both to request corrections and have been rebuffed. One was even a federal healthcare fraud investigator who could not get her doctor to refund payment for a visit that never happened, then couldn’t get the insurance company to act. Her insurer said, “The record was in order, so we paid the claim.”

In an industry that has seen patient deaths from medical errors grow from a 1999 estimate of 50,000-100,000 to over 250,000-plus today, inaccurate and inauthentic records are a part of the problem, at the least because these records cannot help solutions.

Now, with even an EHR vendor paying a False Claims Act settlement for cheating the government, and two high-ranking federal officials saying they know of others, who is minding the store? The amazing answer isn’t just how few are working for improvements, but also who isn’t.

Fortunately, there are indeed a few organized efforts to push these matters to action. Standards developers labor on, but where we need clinicians, there’s much more thanks to nursing professionals than to physicians’ organizations. Another rising star is the Association for Healthcare Documentation Integrity and its work providing tools and guides on documentation accuracy assurance, not “revenue enhancement.” More recently, The Sedona Conference has published works aspiring to improve EHRs based on requirements in law and legal process. I also salute a stalwart few at the Centers for Medicare & Medicaid Services (CMS) and the HHS-OIG for ramping up its actions in this area. Perhaps soon EHR vendors and more clinical organizations will finally get out in front.

A rising motivator is the actions of lawyers and judges who are observing the havoc caused in courtrooms by unreliable records and are pushing for change.
Reed D. Gelzer, MD, MPH

Reed Gelzer, MD, MPH is the former co-chair of the HL7 EHR Standards Workgroup, currently facilitator of the HL7 Records Management and Evidentiary Support Workgroup. His consulting firm, Trustworthy EHR, LLC is based in Newbury, N.H. and Philadelphia, Pa. Primary areas of interest include EHR system reliability, EHR record accuracy, and authenticity for clinical and business records, as directed by principles of science and by U.S. law and legal processes.

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