In the ever-changing landscape of medical records, the challenges facing a plaintiff's practitioner in uncovering falsification and Hospital Never Events of a chart have dramatically been altered by the presence of electronic medical records (EMRs). It is first essential to compile the list of Never Events. This is available from the lists from the National Quality Forum Never Events list or the CMS Never Events list 2016.
Gone are the days when a simple scratch-out or out-of-order handwritten progress note can lead one to indicators of false charting. Instead, most of the staff in hospitals provide the entirety of their notes with drop-down menus, which are carefully programmed to never be out of sequence and never to be entered when the patient actually is not in the building.
This does not mean that the care provided was good or that the charting was honest. Instead, it simply raises the bar for advocates of individuals who have been hurt in detecting falsifications and poor treatment.
One of the most effective means of uncovering falsifications into a record involves the laborious process of tracking the condition of patients on each day of a hospital admission and then comparing them to which portion of a drop-down menu was utilized to assess their status.
In my review of hospital records, I have found individuals in a coma who have been the subject of repeated drop-down menu entries, indicating that they were "counseled in the use of a trapeze for purposes of bed mobility." I have had patients have conversations with staff when the patients were unconscious.
Facially, these records look perfectly straight and verifiable. In reality, they have nothing to do with what happened when the patient was being treated. Getting to the bottom of the discrepancy between what is in these EMRs and what really happened often involves scrutiny with other records within the hospital chart, comparison to records maintained by other facilities at similar periods of time and testimony of family members, who can describe dramatic differences between what really happened and what is contained within the EMRs.
As slow and laborious as this process is, it bears great rewards. It also exposes bad care at the hospital and often exposes CMS Never Events.
At the time of the Civil War, legislation was passed that no one could have predicted would ultimately be utilized in a myriad of activities involving private entities and their billing activities with the United States Government. Known as the False Claims Act, or Qui‑Tam, the law was originally drafted to prevent the government from unsavory contractors who took advantage of taxpayer funds, while fraudulently over-billing for goods and services.
The law was quiescent for a significant period of time, but has seen a surge of late. More colloquial characterization of this law is known as the Whistleblower law, which title is self-explanatory. For cases such as these, the whistle-blower is known as a "relator." The relator is the individual possessed of knowledge that can assist the federal government in recouping monies ostensibly stolen from them by unethical corporations and/or individuals.
Relators have significant rights and are the subject of what is known as a relator's fee, should such a case be successfully prosecuted either by the government or by private counsel. Meeting at a metaphoric intersection with Qui-Tam is the much more recent Medicare rule, colloquially known as Never Events. In 1991, a physician, Kenneth Lizer, formulated a list of events which should never occur in the long-term care setting. Of these ~28 enumerated events, the most commonsensical ones involved issues such as amputating the wrong limb, leaving a surgical instrument inside of a patient after a surgery and the like. The list, however, is exhaustive, and includes hospital issues such as decubitus ulcers and falls.
The concept was later adopted by a number of insurance carriers and supported by nonprofit entities, including National Quality Forum (NQF). NQF is comprised of a number of physicians, insurance companies and care providers, motivated to ensure that patients receive the best possible care at hospitals. Once adopted by the NQF, insurance companies also adopted the Never Events concept, making clear to medical providers that if any one of the enumerated "Never Events" occurred at a hospital, they would not reimburse the hospital for the costs attendant to correcting the very problem caused there.
In other words, if a patient who's in the hospital getting treated for cardiac-related issues, if that individual fell and fractured his or her femur and had to stay in the hospital for a number of additional weeks, the hospital could not be reimbursed for the care related to the broken bone, only the original event relating to that person's admission. Instead, the hospital essentially had to eat the costs related to fixing the problem that the Never Events doctrine indicates that they caused.
In 2008, the federal government also adopted the Never Events doctrine, while not necessarily embracing the name Never Event. The legislation enacted by Medicare/CMS characterizes the Never Events doctrine as Serious Reportable Injury. However, the concept is the same.
Even with the title change, most individuals in the insurance, public health and private healthcare industries still refer to the doctrine as the Never Events doctrine.
Injuries occurring in the acute care setting that fall within any 1 of the 28 enumerated Never Events, stand to cost the acute care industry significant money. They occur quite frequently and studies indicate that the healthcare "cost" is enormous.
Unfortunately, of late, hospitals have begun changing diagnostic codes in billing records to avoid the rather harsh financial consequences of Medicare's enforcement of the Never Event doctrine.
This means that individuals who are harmed in hospitals in a fashion that places them squarely within 1 of the 28 enumerated categories, find themselves facing medical bills that reflect treatment different from that which they are receiving to cure the problems caused by the hospital. The problem has become prolific.
Employees at the hospital are most likely the best equipped to turn hospitals in for this improper billing practice. This is where the confluence of Never Events and Qui‑Tam/whistleblower takes place. The hospital employee – most often in the billing department – is the individual who can serve as a whistleblower/relator in presenting Medicare with proof that the hospital has been falsely altering medical billing and diagnostic code records to ensure that they are paid not only for the original reason for the admission of the patient, but even for the otherwise disallowed treatment for injuries caused by the hospital that qualify as "Never Events."
Any individual aware of such billing practices has the right to seek private counsel with an attorney to explore the possibility of serving as a whistleblower/relator in rectifying the hospital's conduct in falsely billing Medicare/Medicaid – and ultimately United States taxpayers.
See My Article from US 1 - Protecting Taxpayer Dollars and Public Safety: Understanding Whistleblower Law and Heathcare
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