Falsification of Medical Records
Falsification of Medical Records
LPN faces criminal charges after covering up a medication transcription error
Nurses have long been advised that a patient's medical record is a legal document that may not be altered or falsified. Errors are to be indicated as such by placing a line through the entry, along with the initials of the author, date and time. Nurses also have been taught that the rationale for accurate and truthful charting is to "preserve" the chart as a record of the care and treatment rendered to the patient in the event that a medical malpractice suit is brought. Since the nurse will likely not be able to recall the past events leading to the malpractice suit, the medical record serves as the means to both refresh recollection and substantiate the treatment and care rendered.
In addition to the threat of a malpractice suit, nurses are aware that discovered and verified medical record falsification could perhaps lead to licensure sanction by the state board of nursing and disciplinary action by the nurse's employer.
It is a fair and accurate statement that few, if any, nurses would anticipate or otherwise expect prosecution by the federal government, with the prospect of a prison term for such an act. However, in a recent action brought by a federal prosecutor in Philadelphia against an LPN, that is exactly what happened.
Relevant Alleged Facts
In this first case of its kind in the nation, an LPN working in a Pennsylvania nursing home has been criminally charged with attempting to cover up a medication transcription error regarding a resident who later died.
The resident was admitted to the nursing home 4 weeks before her death. Allegedly during the resident's stay, the LPN received a verbal order to reduce the resident's anticoagulant medication. A short time thereafter, the resident's condition worsened, and the LPN realized that she failed to transcribe accurately the order to reduce the anticoagulant medication. The LPN then allegedly falsified the resident's medical record to indicate that the physician order had been implemented correctly. It was this alleged falsification of the medical record, not the initial error itself, which formed the basis for the criminal charges.
The False Claims Act
The law used by the federal prosecutor to prosecute the LPN has never been utilized in this way before. This federal law was incorporated into the 1996 Health Insurance Portability and Accountability Act (HIPAA), and precludes the making of "false statements" in a matter involving a federal health care benefit program. The health care benefit programs that are usually involved are the federal Medicare and Medicaid programs.
The penalties involved for such false statements are a maximum term of 5 years imprisonment and/or a $25,000 fine. Additionally, the conviction may serve as the basis for mandatory exclusion from participation in the Medicaid and Medicare programs. If excluded, the individual could never again work for an entity that bills either Medicare or Medicaid for health care services the entity provides.
The law was intended to deter and punish the knowing and willful false presentation of a claim for benefits or payment under any federal insurance program. It was intentionally drafted by Congress as a broad provision, which essentially criminalizes the falsification of a medical record in support of a bill for services. It has not previously been used to prosecute an individual for the falsification of a medical record alone, albeit that is an accurate interpretation of the statute.
It is noteworthy that the prosecutor is not alleging that the medical record was falsified in an attempt to fraudulently bill the government for services not rendered or to otherwise personally financially benefit. That is not what this HIPAA provision requiresit only requires that a false statement was knowingly or willfully made in connection with services rendered that are paid for by a federal insurance program. Furthermore, the LPN is not being prosecuted for the resident's death. Instead, the prosecution centers on an act that few nurses previously would have known could result in potential incarcerationmedical record falsification.
This prosecutor, who specializes in health care fraud, is admittedly using this case and this LPN as an example to deter medical record falsification. He admits that he has chosen this case to make a statement regarding what he perceived to be a significant problem. He maintains that medical records are "routinely falsified" and that if such falsifications are prosecuted as federal offenses, it will deter such behavior. The prosecution certainly serves as a significant reminder to all health care workers of the necessity to accurately and truthfully document in the patient's medical record.
Renee H. Martin is a health law associate at Wolf Block Schorr & Solis-Cohen, LLP, Philadelphia.