May 12, 2016

QUESTION:        Several registrants at our recent Complete Course for Medical Staff Leaders in San Antonio asked related questions:  Where should quality concerns expressed by a Medical Staff member be documented (particularly when the physician who has been counseled about behavior that undermines a culture of safety has alleged that the counseling is retaliatory)?  And, how should collegial interventions be followed up?

ANSWER:            All quality concerns should be assessed and followed up.  Where the assessment and follow-up documentation is placed depends on the nature of the concerns. Allegations of retaliation are becoming very common, and likely to be used in the event of a professional review action in a hearing or litigation by an attorney for the physician.  Documenting that the concerns have been reviewed and, if there is merit to them, addressed may be critical to the defense of a professional review action.

No one – even a Medical Staff member – is entitled to confidential peer review information about how another professional may have been counseled or how a particular issue has been resolved if the resolution involves confidential information. Anyone reporting a concern should be advised that all concerns are taken seriously, but that confidentiality must be respected.

Documentation submitted by a physician who raised a concern can be maintained in that physician’s file along with brief documentation as to whom the concern was directed appropriately, depending on the nature of the concern.  If the concern led to changes in policy, and if that policy change is not a confidential peer review matter, that resolution could be maintained in several places, including in the physician’s file, and the physician informed of the outcome.  However, raising a concern does not justify behavior that is disrespectful of others or interferes with the delivery of care.  It is also important to document collegial interventions in a constructive way, thanking the physician for meeting, summarizing the key points of any meeting and expectations for behavior going forward, and inviting the physician to respond in writing for the file. If the behavior continues, documentation of progressive steps, perhaps leading to conditional reappointment, is important.

If a physician raises multiple concerns over time, that pattern in itself may become disruptive.  It can be tempting to “consider the source” and not take a complaint seriously if the concerns are raised by a physician whose behavior has been the subject of many reports by team members, and if that physician has a pattern of attributing leaders’ interventions as retaliatory.  Don’t succumb to that temptation!  Rise above it and remember that someday a hearing panel, the Board or even a judge may be reviewing your documentation.

December 17, 2015

QUESTION:        One of our surgeons has been preparing operative reports over the weekend for his upcoming surgeries on Monday or Tuesday. He explained that he has more time over the weekend, so he copies and pastes op reports from prior, similar surgeries into the record for the upcoming surgery, then revises them after the surgery as needed. Should we be concerned with this practice?

ANSWER:          Medicare and other payors recognize the efficiencies that can result from the copy and paste feature of EMR technology. At the same time, those payors are also concerned that such technology will be used improperly in a way that is bad for patient care and leads to inflated payments.

On September 24, 2012, the federal Department of Justice (“DOJ”) and Department of Health and Human Services (“HHS”) issued a letter regarding the fraud and abuse concerns about certain EMR documentation practices. DOJ and HHS stated “[a] patient’s care information must be verified individually to ensure accuracy; it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments.” The letter spoke generally about the willingness of DOJ and HHS to prosecute health care fraud based on improper EMR documentation practices. A copy of the letter is available at:

In December 2013, the HHS Office of Inspector General followed up with a report titled “Not All Recommended Fraud Safeguards Have Been Implemented in Hospital EHR Technology.” The report discusses risks and benefits of the copy and paste feature in EMR technology.

Following the lead of DOJ and HHS, National Government Services (a Medicare Administrative Contractor) discussed the overpayment risks of “cloned” documentation as follows:

Documentation is considered cloned when it is worded exactly like or similar to previous entries. It can also occur when the documentation is exactly the same from patient to patient. Individualized patient notes for each patient encounter are required.

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Whether the documentation was the result of an Electronic Health Record, or the use of a pre-printed template, or handwritten documentation, cloned documentation will be considered misrepresentation of the medical necessity requirement for coverage of services due to the lack of specific individual information for each unique patient. Identification of this type of documentation will lead to denial of services for lack of medical necessity and the recoupment of all overpayments made.

EMR technology can improve the content and consistency of documentation, and make it less burdensome to produce. However, using a template to prepare documentation in the EMR before the procedure is actually performed increases the risk of allegations of “cloned documentation” and “fraud and abuse” by the government or third-party payors.