It happens so easily these days. A nurse at a hospital is trying to be efficient with their shift, so they pull multiple patients’ medications from the Pyxis machine prior to making their evening rounds. A conversation is had with each patient regarding their pain, and medication is administered according to these conversations.
This nurse has every intention of documenting these conversations as basis for administering the pain medication, but then they are called away to another patient’s room for an emergency. The nurse attempts to complete their documentation by the end of their shift. But rather than providing the required details, they document general recollections of the patient encounter, which may or may not be sufficient to justify the pain medication administered and may or may not be accurate.
Kristen Nelson, DePaul 2012, is a shareholder with von Briesen & Roper, s.c., in Milwaukee, where she focuses on health law, government enforcement and internal investigations, regulatory compliance and fraud and abuse, and professional liability.
Or consider a physician at a busy medical practice, doing their best to see all of their patients for the day who are scheduled for back-to-back appointments. Before the physician even has a chance to breathe, it is the end of the busy day and they have not completed any of their documentation. The physician may try to complete their documentation from hastily written notes from the patient encounters, or they may wait, thinking they will do it when they have time the next day. The next day becomes the next day, and soon the physician has days, weeks, or months of notes that need to be entered into the patients’ medical records.
Violations and Penalties
Consider the first scenario with the overworked nurse, in which the documentation reflects the pain medication given, but not the patient’s reported pain scale. In other words, the nurse did not document the justification for giving the medication.
How bad was the patient’s pain? If it is not documented and someone questions the reason for giving the patient pain medication, the nurse may be found to have violated Wis. Admin. Code § N 7.03(8)(c) (administering any drug other than in the course of legitimate practice or as otherwise prohibited by law) or Wis. Admin. Code § N 7.03(8)(d) (error in prescribing, dispensing, or administering medication).
A failure to justify the administration of pain medication can also result in a finding that the nurse violated Wis. Admin. Code § N. 7.03(6)(a) (failing to perform nursing with reasonable skill and safety) or Wis. Admin. Code § N 7.03(6)(c) (departing from or failing to conform to the minimal standards of acceptable nursing practice that may create unnecessary risk or danger to a patient’s life, health, or safety. Actual injury to a patient need not be established).
Perhaps in a similar scenario, the nurse had a busy night and their shift is ending. They need to document the care they provided, so they do it quickly believing their recollection of their shift is accurate. A perceived pressure to leave promptly at the end of their shift may cause the nurse to “copy and paste” notes, in an effort to document more quickly and efficiently.
Unfortunately, this is an error-prone approach. Incorrect charting can obviously result in malpractice, but also to a violation of Wis. Admin. Code § N 7.02(5)(d) (submitting false claims). Depending on the amount of records with incorrect entries, the documentation may be seen as a violation of Wis. Admin. Code § N 7.03(5)(b) (intentionally making incorrect entries in a patient’s medical records or other related document), which can also lead to a violation of Wis. Admin. Code § N 7.02(5)(c) (engaging in abusive or fraudulent billing practices, including violations of federal Medicare and Medicaid laws or state laws).1
The busy physician in our other hypothetical also exposes themselves to risk when they do not document patient care completely, legibly, or timely. Delaying documentation into the patient’s health care records for weeks or months can result in a violation of Wis. Admin. Code § Med 10.03(3) (failing to establish and maintain timely patient health care records, including records of prescription orders, under § Med 21.03, or as otherwise required by law).
The physician or physician assistant who forgoes electronic health care records for handwritten records, leaves themselves vulnerable if the records are not “sufficiently legible.” Under Wis. Admin. Code § Med 21.03(3), each patient health care records entry shall be dated, shall identify the practitioner, and shall be sufficiently legible to allow interpretation by other practitioners for the benefit of the patient.
Regardless of whether the health care record is hand written or digital, it must be complete as required under Wis. Admin. Code § Med 21.03(2)(a-d) (a patient health care record prepared by a physician or physician assistant shall contain the following clinical health care information which applies to the patient’s medical condition: (a) pertinent patient history, (b) pertinent objective findings related to examination and test results, (c) assessment or diagnosis, and (d) plan of treatment for the patient).
Physicians who are not documenting completely, legibly, or timely leaves themselves vulnerable to other violations of administrative code governing physicians in Wisconsin. If documentation is not complete or legible, or does not support the care for which payment is requested, the physician will have a difficult time defending against allegations that they violated Wis. Admin. Code § Med 10.03(1)(g) (obtaining any fee by fraud, deceit, or misrepresentation).
The physician may also have a hard time defending their reasoning for care provided and run afoul of Wis. Admin. Code § Med 10.03(2)(b) (departing from or failing to conform to the standard of minimally competent medical practice which creates an unacceptable risk of harm to a patient or the public whether or not the act or omission resulted in actual harm to any person).
The physician may also not be able to defend allegations of improper prescribing, and be found to be in violation of Wis. Admin. Code § Med 10.03(2)(c) (prescribing, ordering, dispensing, administering, supplying, selling giving, or obtaining any prescription medication in any manner that is inconsistent with the standard of minimal competence).
Nurses and physicians are not the only licensed health care professionals who are required to comply with Wisconsin law concerning accurate documentation of care in patient health care records. Chiropractors, dentists, and social workers (just to name a few) are all held to similar standards by their own licensing boards.
Consequences of Licensing Violations
Licensing violations in any health care profession can have consequences beyond a reprimand, suspension or revocation.
Limitations placed upon the license of a health care professional are often required to be reported to the National Practitioner Data Bank (NPDB), pursuant to 45 CFR Part 60.
A finding that a health care professional has been falsifying health care records and/or obtaining any fee by fraud, deceit, or misrepresentation can result in criminal convictions under both state and federal law. A felony conviction for health care related fraud, theft, or other financial misconduct as well as felony convictions related to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances results in a mandatory exclusion from all federal health care programs, including Medicare and Medicaid.2
This exclusion means that a licensed health care professional cannot bill Medicare or Medicaid for any health care services provided, nor can any health care entity bill for this excluded licensed health care professional services. Typically, such an exclusion is career-ending.
A Vital Part of Patient Care
Accurate and thorough documentation is incredibly important for patient care. It is also crucial for a licensed health care professional to document completely, accurately, and timely.
In the moment, it may be tempting for a health care professional to take shortcuts or put off completing documentation until the next day. But this momentary judgment call may result in a lifetime of professional consequences for a licensed health care professional.
How to Help Your Clients
Counsel for medical practices, hospitals, and other health care entities should encourage corporate policies, procedures, and training that promote timely, accurate record-keeping. Scheduling time to complete documentation is also important to ensure that the health care professional has time to promptly and accurately chart.
Beyond monitoring timely completion and good compliance practices, such as periodic retrospective chart audits, attorneys can work proactively with our clients to address company culture or personnel policies that may inadvertently pressure professionals to rush or otherwise fail to provide full and accurate documentation.
If a documentation error or insufficiency is identified, it is important for an attorney representing a health care entity or individual health care professional to make a full assessment of the potential consequences of the problem when recommending a resolution.
Negotiating findings of fact with a licensing body or a severance agreement with an employer may only be part of the solution. An attorney who does not understand and address all parts of a resolution could cause unintended professional consequences for the licensed provider.
This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section webpages to learn more about the benefits of section membership.
Endnotes
1 Intentionally falsifying a patient health care record is also a crime in Wisconsin under Wis. Stat. § 146.83(4) and carries a penalties of a $25,000 fine or imprisonment for up to nine months.
2 42 U.S.C. § 1320a-7.
