Dear HHS: Stop with the righteous indignation over EHR use

Tools

There's been a lot of buzz this week about the Centers of Public Integrity's report and New York Times article that doctors and hospitals are overbilling Medicare in large part because of their use of electronic health records, which enables providers to clone notes, upcode and "game the system". Now U.S. Department of Health & Human Services Secretary Kathleen Sebelius and U.S. Attorney General Eric Holder have sent a strongly worded warning letter to five key provider groups that using EHRs to commit billing fraud will not be tolerated, and that providers who do so will be "vigorously prosecuted."

Fraud and abuse should be prosecuted. No one should be getting paid for services they didn't provide, that they're not entitled to. Everyone agrees with that.

But why should it be a surprise that EHRs are being used to change how providers bill? One of the biggest selling points of EHRs is that this wonderful new electronic tool automatically captures additional data providers may have missed when manually coding, enabling providers to bill more accurately for their services. It's called "right coding." Considering that providers are being encouraged to buy these expensive tools, it's logical that they're going to use this function.   

Moreover, it's no secret that EHRs have this capability. The government is certifying these products. So why the righteous indignation? This isn't news. The Office of Inspector General even flagged EHR upcoding as an issue in its last work plan.  

It's like Captain Renault in Casablanca, who is "shocked, shocked" that there's gambling in Rick's Bar just before the croupier hands him his winnings.

This is just another unintended consequence of EHRs. But it is not unexpected, at least not by those in the industry.  

And frankly, the government is already on top of this. It's ratcheted up its fraud fighting efforts tremendously. Medicare Administrative Contractor NGS has already notified providers that it will deny claims based on cloned notes. OIG already has conducted one investigation of EHR bills in which, ironically, it found that physicians were still manually coding.

So, if anything the government should be commended for already identifying and addressing this problem with EHRs.

Since the tax courts have long held that taxpayers are allowed to maximize their legitimate tax deductions, it seems reasonable and consistent that providers can maximize their legitimate bills for services. That's not the same as fraud.

The real question is not whether EHRs are aiding and abetting fraud. We know that sometimes it's yes and sometimes no.

The question is who is designing and programming this EHR function and allowing fraud--and mistakes--to occur so readily. Can we really blame just the providers? I think not.

And that's worth some righteous indignation. - Marla