The heads of both the Department of Justice (DOJ) and Department of Health and Human Services (HHS) sent a joint letter on Monday, September 24, to five hospital industry groups, including the American Hospital Association, threatening to prosecute providers that use electronic health records (EHR) to “game” the system and improperly obtain federal monies for which they are not entitled.  The letter, signed by Attorney General Holder and Secretary Sebelius, states that hospitals may be using EHR to clone medical records and to upcode claims, both of which would result in hospitals improperly obtaining payments under Medicare and Medicaid.  DOJ and HHS go on to say that false documentation is not only bad patient care but also illegal.  In a strong signal of what DOJ and HHS plan to do, the letter affirmatively states that health care fraud will not be tolerated and that providers who misuse EHR to bill for services not provided will be aggressively pursued.

Our Insight.  Your Advantage.  Husch Blackwell has many attorneys that served in various roles in the Federal Government, including a former U.S. Attorney, several Assistant U.S. Attorneys, and a Senior Counsel from the Office of Inspector General.  While it is unclear what prompted this letter to the five hospital industry groups, our experience tells us that a letter like this from DOJ and HHS would not be sent unless the government has specific information to support its allegations.  Thus, it would not be surprising if DOJ and HHS, along with other law enforcement entities, ramp up their investigations or audits to ferret out potential fraud in this area.  As a result, all providers, not just hospitals, should be cautious about their use of EHR to ensure that claims submitted to the government are only for services actually provided.  Moreover, in reviewing the letter, our experience indicates that providers who are subject to any kind of government audit might find those results shared with other government agencies that have more significant enforcement powers.  Given the enforcement landscape, we recommend that providers also seek competent legal counsel to navigate these complicated issues.  Please stay tuned as we continue to monitor this development.

Click here to read the letter.