Notes on Notes on Notes on Notes

Yes, notes needn’t stand alone.

Sometimes two contradictory principles work their way into conventional wisdom. I often hear people say, “Every note must stand alone.” Is that true? It is also somewhat common to have people assert that cloned or copied and pasted notes are improper.

In fact, a client received a letter from a Unified Program Integrity Contractor (UPIC) that included variants of each statement as a rationale for denying claims. Before I analyze the validity of each of these statements individually, I want to consider them together. Can both of those statements be true? If each note must stand alone then the patient’s entire history and all the rationale for their care has to appear in each and every note. From a practical standpoint that would mean each medical record entry would, in essence, be the patient’s whole history. That would mean you would be copying and pasting a heck of a lot. So whoever at the UPIC is responsible for writing the letter that denied one claim because the note didn’t stand alone and another for notes having excessive “cloned” documentation needs to hone up on their critical thinking skills. 

Now that we’ve established that both claims can’t be true, let’s look at them individually. One of the biggest challenges as a lawyer is “proving” something is legal. There aren’t normally laws that explicitly permit a particular activity. Instead, you must keep looking for a provision that prohibits a practice, and if you fail, conclude the practice is legal. I don’t know of anything that suggests a note has to stand alone. Section 1833(e) of the Social Security Act, which is the provision contractors routinely cite when claiming that there is a documentation requirement in Medicare, says “No payment shall be made to any provider of services or other person under this part unless there has been furnished such information as maybe necessary in order to determine the amounts due to such provider.”

That statute doesn’t require the information to appear in the medical record at all, let alone in a single freestanding note. Returning to the logic with which I opened this segment, if notes had to stand alone each note would need to include every entry from every specialist treating the patient for every condition. That’s obviously not true.  Notes needn’t stand alone.

The claim about cloned notes is a bit closer to accurate, though still wrong. Once again, I don’t know of any statute or regulation specifically on point. But if a note for a particular day includes an exam element, unless the note specifies the exam was conducted at a prior date, it’s misleading to include it in the entry unless that exam element was performed on that particular date of service. It isn’t illegal or improper to copy information from a prior entry to a current one as long as the information that’s copied is accurate. It is legal to take history elements and carry them forward, as long as they remain true. 

If you choose to make it each note entry stand alone, that’s legally permissible, you just need to make it clear when the various services documented occurred. A cloned note by itself isn’t illegal. The problem is that it is easy to make a mistake, including references to body parts that were removed, or conditions that have been cured. Trouble arises when the cloned note includes inaccuracies. So it’s wrong to claim it’s illegal to clone a note, but it is accurate to encourage people to be very cautious when copying information. 

It is common for phrases to be repeated so frequently that people just accept them as true. When people come with platitudes about what is and isn’t legal, consider George Harrison and the Beatles who encourage you to “Think for yourself ‘cause I won’t be there with you.” While the Beatles won’t be there with you, if you ask me, I’ll do my best to show up.  I just won’t be nearly as popular. 

Programming Note: Listen to David Glaser’s “Risky Business Report” every Monday on Monitor Mondays, 10 Eastern. 

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David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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