Proving Nursing Home Chart Manipulation: What You Need to Know
Can you trust what’s written in a nursing home’s records? This episode peels back the layers on the legal techniques and evidentiary hurdles involved in demonstrating manipulation of nursing home documentation. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Meagan Shore, Esq. to discuss strategies for identifying discrepancies in nursing home charts and the significant role this evidence plays in court.
Schenk:
Proving that the electronic medical record in your nursing home case has been manipulated. Stick around.
Hello everybody. Welcome back to the nursing home abuse podcast. My name is Rob. I’ll be your host for this episode. We’re going to be talking about the chart, a nursing home chart, and if it’s an electronic chart, all the ways that we can use computer forensics to figure out if that chart has been manipulated in some way, if it’s not what it says it is, if what you’re.
Resident or the resident’s family is telling you is not true. How we can, we verify that by looking at the chart and the auditing around that chart. But we are certainly not doing that with just my knowledge, heck no, we’re not doing that. We have a fantastic, a trial attorney who is highly knowledgeable in this field.
And that is Megan Shore. She is going to be talking to us all about electronic medical records, point click care, All the companies, all the audit trails, all the data, and it’s a fantastic conversation. So stick around for that.
All right, folks, let’s get into the meat and potatoes of the episode. Again, we’re talking about the electronic medical records, audit trails, how we can prove that our resident’s chart has been manipulated. We’re not doing that alone. We have the fantastic trial attorney, Megan Shore, on the show today.
Meagan Shore, a plaintiff’s attorney, specializes in litigating cases of nursing home and assisted living abuse and neglect, boasting a 100 percent success rate in obtaining compensation for her clients. Recognized by the National Trial Lawyers as a top 10 nursing home lawyer and a top 40 under 40, her cases have garnered media attention from CBS, ABC, NBC, and the Washington Post. Learn more about Shore Injury Law.
Megan additionally serves as a consultant and nursing home abuse and neglect for nursing home abuse and neglect attorneys for nurses, the attorney general and Congress offering expertise and auditing medical records for inaccuracies. And Megan is a fantastic consultant. And as the bio, as I flubbed over the bio there, she provides consulting services to attorneys in the realm of electronic medical records.
She’s really great at it. And we are so happy to have her on the show today. Megan, welcome to the show.
Shore:
Hi, thanks for having me.
Schenk:
I get this question a lot where it’s like with potential clients and class people that call me and it’s they’re the charts alive.
These guys are lying. They told me X and I’m looking at the record and it says Y. That’s really the genesis of why I wanted to have you come on the show because I know that you’re really good at this stuff. But the main idea is how in, in today’s charts in nursing homes, how are we showing that it has been manipulated, deleted, in some way, not showing the truth of what happened.
What is the electronic medical record?
And so they, I guess the first question I’m going to have is, um, when we’re talking about this, let’s get our definitions right. I guess I’m, I know it as the electronic medical record or EMR. And that’s and so you’re kind of knowledge is in EMRs, so I’m going to turn it over to you. Is that the right definition? And is that where we’re looking to find. Manipulations or problems with the chart?
Shore:
Yeah. That’s a really good question, actually. The electronic medical record, the EMR, which can sometimes also be called the EHR, electronic health record, is data that’s contained within a system that is either used by a hospital or a nursing home.
In a nursing home setting we have the ability to not only get what’s the EMR but we can also get audit reports or audit trails, depending on what software system is being utilized, as well as other reports that don’t even have the word audit in them. And so when we say the EMR, we’re talking about specifically the medical chart, typically what’s produced by defense attorneys.
But legally pursuant to federal law that all skilled nursing facilities assisted living facilities and hospitals are subject to is that it is actually, you’re entitled to the patient’s protected health information. PHI. And what is P-H-I-P-H-I is two things. It’s the EMR and it’s all that audit data.
So the client or the individual who is a patient or a resident. As well as their attorneys are not only entitled to getting an EMR, but they’re also entitled to getting the audit trail or whatever equivalent the system calls it to actually ensure that the information contained within the chart is true and accurate.
The audit trail is the only way to verify that the medical record is truthful.
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What does manipulation of the chart mean?
Schenk:
Let’s let me back up there. Cause I think I understand what you’re saying, but when you’re saying the word audit trail or auto report, can you unpack a little bit, if you can unpack a little bit about what that means?
And I’m sure it’s different from EMR program to EMR program, but in general, what does that mean?
Shore:
Yeah, so in general, an audit trail is the who, what, where, when of medical record. So there are certain regulations, these ASTM rules that federal law has adopted particularly through what’s called the High Tech Act that defines what needs to be included in an audit trail.
And all facilities are subject to this. No matter what, if they’re using electronic medical records, nobody gets a free pass on that. So that, that’s what an audit trail is. It’s metadata that lets us see who was in the chart, when they were in the chart, what action they took with the chart, whether that is view, print, delete, update. And where in the chart they actually were.
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Schenk:
And I guess if I understand you correctly and we don’t have to get into the, I’m just, I’m not going to quiz you on the actual code, but you’re saying that the typical resident or the typical patient is not only entitled to their chart, like literally Oh, I would, this treatment was provided to me on this day, or this medication was part of me on this day, but literally the metadata.
You’re also entitled to the metadata under the same regulation. Like it’s, they’re both connected. You get them both.
Shore:
Yes. Cause you are entitled to your protected health information. If you don’t get it and the facility doesn’t want to give you that information, you can actually make a complaint with the office of civil rights for a HIPAA violation.
But you need to make that complaint with one within 180 days of being denied your request.
Schenk:
And this might be a foolish question, but you would be entitled, you being the patient or the resident, you’d be entitled to that metadata irrespective of whether there’s a lawsuit filed or not. Like when you make a high tech request, which is you’re requesting the met your medical chart from the nursing home.
You could theoretically at that point file the complaint because you didn’t get the audit trail. Is that about right? Or.
Shore:
That’s correct.
Schenk:
Oh, wow. Okay. See, I learned something new every podcast, I should be filing OCR complaints all the time. Okay. Anyway, I digress. So let me ask you this then. It seems to me from what you’re saying, that audit trail is mega important.
Because that’s, it seems that it’s showing you if Nurse A was the one that input something and if she deleted something that existed prior that may help your case or whatever, it’s going to show that, right? Tell me what are some of the things in general that you might be looking for if you think Or you’re, you, by what your client has told you, the chart is not right, it’s not showing the truth. What are you looking for?
Shore:
So when I’m looking at the chart, there’s a plethora of information out there, a universe of data. So you really have to focus in on. really what’s your case about and owning in on the liability and the causation before you decide to branch out beyond those points in time.
So what I always want to do first is actually make sure that I have the complete medical record. Audit trails are have they become like a fashion trend and everyone’s got to get it, got to get it. Slow down. All right, you need to make sure you actually have the complete medical record and the beauty of certain software systems.
And this is why you must know the software system that’s being utilized. And if you’re going to use an expert or consultant or whoever, you need to make sure they actually know that software. Because there’s different names and capabilities for each software and some medical records, particularly the one that’s most commonly used in nursing homes, which is point click care.
26, 000 facilities across North America use it actually have the capability to put in certain audit data directly in the medical chart, not for every portion of the chart, but some portions. And so it’s very important to make sure that data is actually included in the medical record that you’re getting, because that will direct you to know what’s been laid, what’s been deleted, what’s been modified before you even get to the next step, which is getting Audit reports and audit trails, which are very different things in facilities, nursing, skilled nursing facilities that use point click care.
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Schenk:
Let me see if I, let me see if I if I’m stumbling onto something. So sometimes I get lucky. And I will receive maybe a care plan that is the care it’s obviously this is electronically created, right? We’re not talking about 10 years ago, and maybe it’ll say it’ll be in italics.
It’ll say, edit a date in the person. And so I’ll have something in italics that might have been deleted. And then the actual real, Entry into the care plan. So when you’re saying you should get the full chart Is that what you’re talking about where you’re seeing if something has been deleted or updated and it’s like in its little italics Is that we’re talking about?
Shore:
That’s correct. And when you’re talking about italics that leads me to believe you’re talking about Matrix cares the system
Schenk:
man. Look at you. That’s amazing that you can tell who It’s amazing that you can tell who the the provider is but just me saying italic That’s amazing.
Anyway, sorry, go ahead.
Shore:
Yeah. No, so it that’s why it’s so important to know your system, right? What software is being used because you can tell just based on certain functions and capabilities like that the font is italicized that this is something that’s been updated So it’s, you got to start there.
You got to make sure you have the complete medical record. And then once you get to that second step, you can actually go and do your audits.
Schenk:
Okay. So here, okay. Is it possible that you can know that you have the full record without having to have a consultant or an expert? Do you, so I guess I guess you’ve already told me that you need to know the software.
And then if you know the software, you can determine that. But is it easy to do? Is it, for some, like point click Claire, I can probably go on YouTube and find like 10 instructional videos, but is it something within the realm of the average attorney to know if they’re getting the full chart or not?
Shore:
It’s not. And I’ve actually scoured YouTube to see if this stuff is really out there and only maybe a 10th. They certainly don’t show you how to upload an audit report or not trail. It’s something I’m always checking on because it would be great if I could just send that video out, instead of teach people, you need to start with someone who knows what they’re doing. Teach you how to do it. Otherwise, you are looking for a needle in a haystack. Like systems like point click care are amazing. I love them. They’re great for quality assurance and communicating and continuity of care.
The problem is, do people know how to use it and go through it? Cause there’s just so much data and information and reports that can be used to provide better care.
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What are common ways in which the nursing home chart is manipulated?
Schenk:
Okay. We’re being really serious, we bring in a consultant or begin an expert. So we have the chart with the full chart as I guess we’re calling it, which might have some of that audit data in it, then we have the audit trail. So now what typically what are we doing to figure out. If this thing is telling the truth or not.
Shore:
Yeah. So with, and again, it depends on which system it is, but you want to be able to narrow down what you’re searching for. So for example, if it is a fall case, a failure to monitor resulting in fall case, and they use point click care.
The first thing that I’m going to be looking at is when were these assessments the next thing that I’m then going to be looking for is where there any changes made to those assessments. And the only way that you can actually see substantively what a note originally said is to Is in point click care where they have audit reports.
That’s different than an audit trail. They have that too, but our reports will actually show you what it originally said. There are very few software systems out there that have that capability, which is what really makes it great in my opinion.
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Schenk:
I guess my next question would be can the facilities that use point click care, turn that off?
Shore:
No, so Point Click Care is a cloud based system, so if there’s an update that happens, it happens for every facility. If there’s something taken away from the system, like a module, it will happen for everyone. And they specifically say in the point click care instructions that you do not have the ability to opt in or opt out of audit reports.
Schenk:
I see. Okay. So then what about the I guess what I’m trying to do in my brain, I’m trying to give an example. So that might be the case that if you’re produced the chart, okay, and let’s just say that it was an update to a care plan. Okay. And it just happens to be the day before or the day before the fall or whatever it is, you could use the audit trail to be like, no, this it’s dated X date, but it actually was two weeks later that this was put into the chart. Like you could figure that kind of stuff out.
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Shore:
It’s actually a complicated question. So the care plans in a point click care case don’t have what’s traditionally called an audit trail or an audit report. They have something different called a revision history.
That is something that’s actually, if the right buttons are clicked, which is literally like one button will show up in your actual medical record that they’re supposed to produce to you. And, I hear these arguments all the time why do I have to give it to you in the format you want it?
It’s not that I’m asking in a specific format, I’m asking to see exactly what you all get to see. I want to see what the health care provider actually gets to see, it’s funny. I take that positions. And a lot of times, there’s what I’m taking a current employee, and they’re actually not even looking at the medical record that’s been produced to me, or in a hard copy, they’re actually in the system live looking at this stuff.
And so I’ll catch them saying, Okay. Oh, this looks different than what you’re showing me. That’s because they’re actually looking at it on the computer. So why shouldn’t I be entitled to see that information as well and all the data that comes with it?
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How do we find out if the nursing home chart has been manipulated?
Schenk:
How does that work then? Are you getting this in a format when we’ll keep with the point click care, but are you getting it in a format that you need a special, do you need point click care to open it up and look at it? Like how do you get it?
Shore:
No. So all of these capabilities. Are something that the facility does. I think, I don’t know for sure, but I think Point Clear Care probably got sick of getting requests back in about like 2019 and changed things up a little bit. And now as of February of 2021, you can have the facility get all the audit trail reports.
But even before that, you could still get a care plan revision history. You could see the actual created dates for progress notes. So that’s all information that’s within the system that the facility gets. It’s very easy. They even have a help question mark in the top right corner if you don’t know how.
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Schenk:
So what is it? What file format are you typically getting when you, let’s say it’s a perfect world and you request the audit trail and the, in the auto reports and all the audit who’s in hats, whatever you get all of it. What format is it coming to? Is it PDF? Like
Shore:
It depends which document. So if we’re talking about a care plan revision history, that’s going to be in the EMR as a PDF. If we’re talking about an audit trail report, that’s the actual name for the point click care audit trail report, that’s going to be Excel. If we’re talking about an audit report, which is different, That’s going to be a PDF and you have to get all of those things. That’s why it’s so important to make sure that you have someone who actually knows this system, because not all EMRs are created equal.
Schenk:
Clearly you have to have somebody that knows what they’re doing. This just already sounds complicated. I was doing good. Just getting the chart. Give me a break. Okay. Guess the next thing would be is there, do you see any trend in terms of like consolidation? Are we heading towards is point care taking over? Like what percentage of the market? I, that’s a dumb question. How many EMRs do you typically see? And do you see a trend towards them just being consolidated into the, into two or three companies?
Shore:
So the trend is for long term care facilities to either use point click care or matrix care, which is also their Sigma care.
Those are the two EMRs that are typically used. Sometimes you’ll see Epic, but those are usually hospitals that happen to have a long term care unit within their building. There’s other facilities though that are LTACs, long term acute care, like Kindred, who has their own system called ProTouch. Those are the ones that are typically being utilized across the country.
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What are some things families of nursing home residents can do to be vigilant?
Schenk:
I see. Okay. Okay. And Megan, I wanna do a quick commercial for you. So you’ve deep dived into this for years and like you’re, you provide consulting to attorneys on EMR matters. Can you just talk about that for a minute or two about how you help typ typically how you can help in a nursing home case?
Shore:
Yeah, I started doing this because I was utilizing IT experts and some nursing experts that, said they were proficient in audit trails. And I came to learn years ago that not all EMRs are the same. And most of the people I was using, even people who had worked in skilled nursing facilities, really didn’t understand point click care or matrix care.
And that was frustrating to me. So I wanted to get to the bottom of it. So I, if I can learn this, even though it was complicated and took a long time, lawyers can too. And that’s what my goal is for lawyers to learn how to do this on their own. Because just like we have to learn the medicine in a case.
We shouldn’t just be, taking everything a retained expert says with a grain of salt. We need to learn about EMRs and audit trails and any electronically stored data that’s contained within a electronic medical record system, because we have a duty and an obligation to do it for our clients.
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And then in the long term, the goal is. You learn to do this and you’re also saving your clients money by not hiring these extremely expensive experts to do it for you. So that’s what I do. I teach lawyers how to do this. I analyze the cases. I determine what you need in your case. But also one thing that’s really important to me is integrity.
So I, it does frustrate me that there are lawyers out there who want to get audit trails on everything and anything. And the evidence is just not there to really support the fact that anything terrible happened. And sometimes there are innocent explanations. There are nurses who care and want to go in and write an updated note that is more concise.
And I think as lawyers, we need to be practical as well and putting ourselves in the shoes of those healthcare providers and understand that not everything is a conspiracy and that there are explanations to this.
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Schenk:
That’s a very good perspective, like having a not inputting a negative intent on whatever the changes get that really countries the perspective.
Anybody out there that might be struggling or, has a case that they, there’s a strong suspicion that something’s going on with the EMR, then definitely Megan is the consultant for you, I can assure you. I want to say that I’ve watched maybe a couple of your like webinars, like the basic webinars, not not your consulting, but your webinars.
And you definitely know what you’re doing. It’s really interesting. Cause it’s like you said, it’s at least before we started recording. Like you, you have to have the expertise of being an attorney, but you’ve used that to having got the got the knowledge to understand point care. You, you bridge the gap, like you can speak, both languages. And I think that’s really cool.
Shore:
Yeah, and it’s really helpful too when you’re taking depositions and you have a healthcare provider that’s I had no idea this was happening and it’s there was an alert popping up. What do you mean you didn’t know? So it’s beyond even the medical record and the audit trail. It’s about knowing the system as a whole.
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Schenk:
So you basically just levitate into your depositions. That’s gotta just feel so powerful, like a wizard Oh, we didn’t pop up. And they’re like, Oh, dang. Who is this lady?
Anyway Megan, we really appreciate you coming on the show. When. And just cracking the surface of EMRs understanding what’s been manipulated or not. But thank you so much. We appreciate it.
Shore:
You’re very welcome. Thanks for having me.
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Schenk:
Folks, I hope you found this episode educational, entertaining, perhaps enlightening.
If you have a suggestion for any topic that you would like for me to talk about, please let me know. If you have an idea for a guest that you would like me to talk to, please let me know that as well. New episodes of the nursing abuse podcast come out every single Monday on wherever you get your podcasts from.
As well as YouTube and our website, nursinghomeabusepodcast. com. So you can watch the episodes if you’d like. Some of the episodes, they pair well with watching. Like some of them, it’s more visual than others, perhaps not this episode, but a few episodes, it would be good to watch. So anyway, that option is there for you always.
And with that folks, We’ll see you next time.
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