Trial Magazine

“If it’s not documented, it’s not done” is one of the key principles in nursing. But what if it is documented in the electronic medical record (EMR), and yet it was not done? How would anyone know? Thankfully, with careful analysis and an understanding of the nursing home industry’s leading EMR—PointClickCare (PCC)—plaintiff attorneys can identify health care providers’ deceiving documentation.

PCC is the leading cloud-based EMR platform for senior care, and purportedly 25,000 nursing homes and 2,700 hospitals use PCC today.¹ Unfortunately, PCC is so user-friendly that health care providers can easily document care that was not provided, circumventing federal requirements for long-term care facilities to maintain “accurate” clinical records.² This creates potentially deadly safety issues for residents, and it allows the nursing home to collect insurance payments when not warranted.

PCC recently announced its intent to acquire Audacious Inquiry—a connected care platform—to allow for data exchange between nursing homes, hospitals, and ambulatory services for over 150 million people across the United States.³ This means acute care facilities can rely on nursing homes’ PCC documentation for continuity of care purposes.⁴

So how can you uncover the truth when representing a nursing home client whose health records were maintained in PCC? Here are some steps to unravel health care providers’ deception and reveal the truth about your client’s care.

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Be sure the nursing home produces the EMR version that lists both the ‘effective date’ and ‘created date’ for each progress note.

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What to Request

Step one is to always make sure you have the complete version of your client’s chart. Simply requesting the client’s entire EMR is not enough. Instead, request the PCC EMR in its original pdf format with the medical record index in hyperlinks. The hyperlinked index will conveniently direct you to each section of the EMR, with each section in chronological order.

After you receive the EMR, it is imperative to check the progress notes and ensure the nursing home produced the EMR version that lists both the “effective date” and “created date” for each progress note. This feature is an audit trail in itself. The effective date indicates the date and time that the nursing staff says the documented event occurred—nurses will have manually selected the date and time they authored the note. Conversely, the created date accurately indicates the date and time the nurse actually entered the note, which is an automatic function of PCC.

Also be sure the “care plan revision history” is included in the chart. Often, direct care nurses testify they have never seen the “care plan”—however, they will recognize “Tasks” and “Kardex” modules in PCC that incorporate interventions listed in the resident’s care plan.⁵ Therefore, it is crucial to request the Tasks and Kardex reports in written discovery.

In addition, request the “Point of Care (POC) Audit Report”—this report will identify when each task was scheduled and the effective and documented dates. For example, a nurse or certified nursing assistant (CNA) can manually select an effective date and time of Jan. 1, 2022, at 15:00 for when he or she turned and repositioned the resident, which matches that task’s scheduled time—but the documented date and time may reveal the task was logged Jan. 31, 2022, at 22:23.

Having all of this information from the onset of your case can help you establish late entry charting, altered charting, or inaccurate charting—putting the case in settlement posture early and saving time while reducing costs.

Audit Reports

Audit data is a required part of every patient’s medical record pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH). Producers of electronic health technology programs such as PCC must certify that their product complies with federal requirements—including being able to show that audit reports are easily and efficiently created.⁶

No matter what any defense lawyer tells you, PCC absolutely has the capability to provide an audit report of a patient’s medical record identifying the patient, the health care provider’s user name, date, time, content entered, modifications, and deletions. PCC has audit trails, audit reports, role reports, login history reports, session history file reports, and more. The nursing home, not PCC, generates these audit reports—it’s not unduly burdensome to print these audit reports, and every nursing home using PCC’s EMR has this capability.

However, when most plaintiff attorneys think of a complete audit trail, they think of an Excel spreadsheet—but this is not the case for PCC. PCC does not provide a single document that allows you to gather all audit data in one continuous Excel spreadsheet like most EMR systems (such as Epic or Cerner). PCC’s Excel audit trail only provides one small part of the puzzle. You’ll also need PCC’s audit reports to determine the substance of the information created, modified, or deleted. Be aware that each form within PCC has its own audit report.

Taking it one step further, the facility can generate reports based on the user as opposed to the patient, job title, and diagnosis codes. For example, if I want to know each time someone with the job title of corporate nurse consultant accessed a resident’s chart, the nursing home can generate a corporate user report. And if I want to know each resident who was prescribed psychotropic medications, the nursing home can generate a report for that too. But don’t blindly request this information—understand what you need, why you need it, and how it could impact your client’s case.

Systemic Failures Cause False Charting

While nursing home staff may inaccurately document or fail to document, systemwide failures can also occur within nursing homes that lead to inaccurate charting—including understaffing and hiring unqualified nurses.

Short-staffing. Long-term care facilities are commonly short-staffed despite the high acuity level of nursing home residents. This is a systemic failure, but the problem typically falls on the shoulders of the direct care staff. As a result, staff shift their priorities to focus on caregiving rather than recordkeeping, leaving little time for documentation.

When nurses or CNAs are confronted with inaccurate documentation, they may respond, “I didn’t have time.” As plaintiff lawyers, we must then segue our line of questioning toward the staffing problems within the facility.

But PCC’s “Document Manager” is intended to address this very issue: It alerts nursing staff to complete documentation and populates prior documentation into current assessments for purposes of saving time. PCC advertises its Document Manager as being able to “avoid non-compliance or legal issues due to missing or incomplete documentation, or absent signatures.”⁷

However, this makes it very easy for nursing staff to falsify records with the click of a button. All too often I have seen patient records—such as weekly pressure ulcer assessments—with the same exact information entered each week. Sometimes it is coincidence, but often records from a visiting wound physician on the same day reveal a larger and deeper pressure ulcer than what the nursing home documented. It’s crucial that you compare nursing home staff assessments in PCC to those of third-party providers such as physicians, nurse practitioners, paramedics, and hospital providers for inconsistencies.

Inexperienced nurses. Compared to registered nurses (RNs), licensed practical nurses (LPNs) and licensed vocational nurses (LVNs) have a limited scope of practice. However, long-term facilities are notorious for hiring more LPNs to make up for the lack of RNs despite the Centers for Medicare and Medicaid Services (CMS) guidelines.⁸ As a result, LPNs who lack the licensing qualifications, experience, and training to perform wound assessments or devise care plans are forced to complete tasks they simply do not know how to do.

When I’ve confronted LPNs about inaccurate or inconsistent documentation, they have confessed to completing wound assessments blindly, copying off of a wound care physician’s assessments from a completely different day or week or auto-populating another nurse’s assessment. Some LPNs have admitted to completing documentation but leaving the note unlocked and allowing an RN to sign the documentation without even seeing the resident to ensure the information is accurate. This tactic can be easily identified by reviewing PCC’s audit and user reports to see which health care providers viewed and entered the information.

Poor leadership and corporate management. I have also deposed LPNs who admitted that nursing supervisors, corporate nurse consultants, or directors of nursing instruct the LPNs to leave their documentation unlocked. This way, the LPN’s documentation can be amended at a later date to reflect a more favorable resident status that will not affect the facility’s CMS star rating and reimbursement.

The CMS generates a facility’s star rating based on information the nursing home self-reports.⁹ Nursing homes that report a high number of falls and pressure ulcers may see their CMS reimbursements reduced or suspended. But rather than resolve the root cause of the problem—such as a lack of training, not hiring qualified people, and not hiring enough staff—some nursing homes fabricate the resident’s clinical status and acuity, meaning the needs of the resident in the Minimum Data Set (MDS) submitted to CMS.¹⁰

It is of the utmost importance to compare PCC’s nursing documentation to the MDS documentation for inconsistencies to determine whether the facility is providing care the resident needs or collecting reimbursement for care not provided. Family accounts and photographs also aid in shedding light on the resident’s true clinical status when there’s a discrepancy between PCC and the MDS.

PCC and Systemic Failures

Nursing homes must employ enough qualified staff to meet the acuity needs of their residents. However, plaintiff attorneys who represent nursing home residents are all too familiar with nursing homes putting profits before patients—including staffing the facility based on the facility’s census, meaning the number of residents rather than the residents’ needs.

PCC maintains facilities’ census data—and allows for this data to be sorted by the facility, unit/wing, form of payment, and ICD-10-CM code (diagnosis). To determine whether staffing levels were appropriate in the facility where your client was injured, you need facility census data along with staffing assignment sheets, clock-in/clock-out sheets (also called punch detail reports), and Resource Utilization Group (RUG) reports for each resident in the facility. In short, a RUG score appears near the very end of the MDS in Section Z and shows the type and quantity of care required for each individual resident based on the resident’s acuity level.

In October 2019, CMS changed its Medicare reimbursement method from the Payroll Based Journal (PBJ) to the Patient Driven Payment Model (PDPM)—the PDPM provides reimbursement based on patient clinical characteristics rather than volume of services.¹¹ PCC works in conjunction with both the PBJ and PDPM. This means that the information entered into PCC, not just the MDS, really matters for purposes of payments made to the nursing home and not just continuity of care. MDS coordinators rely on PCC documentation to accurately complete the MDS.

Moreover, certain PCC assessments auto-populate information into the MDS and vice versa. Whether your client’s injuries occurred during the PBJ or PDPM eras, MDS coordinators refer to information documented in PCC—such as the resident’s required level of assistance for activities of daily living (like bed mobility), the resident’s diagnosis, therapy minutes, or bed sores when reporting to CMS for purposes of reimbursement.

PCC offers many “add-on” programs called modules. So it is necessary to request the service agreement between the nursing home and PCC to determine what additional services PCC provides to the facility. I also recommend including interrogatories directed to both the facility and management company to determine whether the following programs were included as part of their service with PCC:

• Customer Relations Manager Tool (CRMT). This add-on sends referrals to the facility from acute care settings and performs a pre-admission screening for purposes of insurance coverage and acuity. PCC advertises CRMT to facilities purporting that the program can increase referrals, increase profitability, meet occupancy goals, and identify residents whose needs may exceed the facility’s capabilities.”¹² In other words, nursing homes can use this tool to increase occupancy by admitting the most lucrative residents. However, you can use this pre-admission data to determine whether the facility knew it could meet the needs of the resident from the start.
• Care Insights. This allows the administrative staff to monitor and evaluate the work performance of the facility’s nursing staff based on documentation metrics. It is crucial to know this function exists when deposing an administrator or director of nursing.
• Performance Insights. PCC used to purport this program would “reduce hospitalizations,” but now PCC advertises this program will “enhance patient care, improve quality and drive reimbursement.”¹³ Many skilled nursing facilities want to reduce hospitalizations because studies have shown that hospitalizations decrease life expectancy. However, some skilled nursing facilities also may want to keep residents to maintain profits and bolster the facility’s rating with CMS through data that suggests the nursing home has a low rate of re-hospitalization. Obtain this data in any case that alleges an untimely transfer or failure to transfer.
• Nursing Advantage. This program can list residents in order of prioritized care based on the highest number of abnormal findings drawn from the residents’ assessments. Request a screen shot of this prioritized care list for the dates your client exhibited a change in condition with other residents’ names redacted. This lets you see where your client was on this list—or if he or she failed to make the high priority list due to an inaccurate assessment or failure to document a change in condition.
• Practitioner Engagement. This program allows physicians and nurse practitioners to access resident records from a remote location (as opposed to onsite). Knowing whether the facility used Practitioner Engagement can help you determine whether the physician or nurse practitioner responsible for your client’s care was fully relying on a verbal report or electronic communication from nursing staff.
• Facility Trends. PCC also allows administrative staff such as a corporate consultant, director of nursing, or administrator to evaluate trends and create reports. For example, PCC has the ability to determine every resident who suffered a fall in a specific unit for a specific month. You can use this information to establish that the facility was on notice of an increasing trend in falls, that the facility knew it was understaffed, or that falls were occurring more frequently in a particular unit during a specific shift.

Combatting Defenses

In my practice, I am always thinking to myself, “How can I get my case in perfect settlement posture with written discovery alone?” This lets me focus on getting meaningful deposition testimony—if I already have all the facts related to my client’s case in black and white documentation, I can focus on eliciting admissions and impeaching witnesses with the electronic data during depositions. Here are some common excuses I’ve encountered and thwarted in depositions due to my understanding of PCC’s functions.

“I gave the patient his scheduled medication. I just forgot to document it.” Document Manager alerts and reminds nursing staff when scheduled assessments, tasks, medications, and treatments are missed or not signed—making it difficult for nursing staff to say, “I forgot.” Further, PCC generates a report available to directors of nursing or nurse supervisors of scheduled care and treatment not performed on each shift to ensure staff document the care provided. Residents who have not yet received scheduled medications or treatment also light up in the color red to prompt direct care staff.

“I did not administer medications or treatment because the resident refused care.” If the resident refused care, the medication or treatment administration record (MAR or TAR) should not be blank. A blank MAR or TAR entry indicates the order was not carried out. There are two options to select when the nursing staff documents an attempt to administer medication or treatment: “Y” or “N” for the obvious “yes” or “no.” If a nurse selects “N,” PCC automatically prompts the nurse to select from 10 options as to why the order was not carried out—these options cover myriad reasons, such as “spit out meds.” In a deposition, you should discuss the step-by-step procedure of MAR and TAR documentation to establish that staff must select a reason the resident refused care.

“I can’t keep track of everyone.” PCC allows the director of nursing or supervising nurse to view exactly how many tasks, medications, and treatments were missed by shift and by floor/unit. In a deposition, question nurses about their knowledge of this function and that they can easily use it to identify missed resident care.

“We did not maintain the 24-hour report because it was stored separately.” PCC provides shift-to-shift reporting and 24-hour reporting functions. In fact, when the nursing staff inputs a progress note, all the nurse has to do is select a check box below the note to automatically populate the note into shift-to-shift reports and 24-hour reports. This is particularly important in cases when a breakdown in communication occurred during shift changes.

“I completed the assessment, but I signed my documentation later.” Assessments often show the date the assessment was allegedly performed (“effective date”), but the electronic signature (“signed date”) shows a date that is days, weeks, or months later. This calls into question whether the assessment was completed on the effective date or the signed date. The audit report answers this question by showing the date nursing staff documented the information.

“We do not chart turning and repositioning.” Documentation Survey Report (PCC’s CNA charting program) has the capability to add “repositioning” as a task to be completed and documented by CNAs. The problem is that care coordinators do not enable the function by adding it to the Tasks and Kardex.

PCC provides many resources to assist nursing homes in tracking and coordinating care. With a proper understanding of PCC’s many functions, you can expose nursing homes’ untruthful documentation and successfully combat their defenses.

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Megan M. Shore-Toca is the founder of Shore Law in Chicago and can be reached at mshore@shoreinjurylaw.com. The views expressed in this article are the author’s and do not represent Trial or AAJ.

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Notes

1. HealthInfoNet, HealthInfoNet Becoming Latest HIE in Nation to Build Connection With PointClickCare, Feb. 28, 2022, https://tinyurl.com/ynjtycmc.
2. For more on federal documentation requirements, see 42 C.F.R. §483.70(i)(1)(ii) (2019).
3. Audacious Inquiry serves as a trusted partner to CMS, the Office of the National Coordinator for Health Information Technology (ONC), and the Centers for Disease Control & Prevention, as well as regional health information exchanges, hospital associations, state governments, public health authorities, health systems, payers, accountable care organizations, and other risk-bearing providers. For more, see Press Release, PointClickCare, PointClickCare Technologies Announces Intent to Acquire Audacious Inquiry (Feb. 1, 2022), https://pointclickcare.com/press-releases/pointclickcare-announces-intent-to-acquire-audacious-inquiry/.
4. For more on “continuity of care,” see Martin Gulliford, Smriti Naithani, & Myfanwy Morgan, What Is ‘Continuity of Care,’ 11 J. Health Servs. Research & Policy 248 (Oct. 2006), https://pubmed.ncbi.nlm.nih.gov/17018200/. (“Traditionally, continuity of care is idealized in the patient’s experience of a ‘continuous caring relationship’ with an identified health care professional. For providers in vertically integrated systems of care, the contrasting ideal is the delivery of a ‘seamless service’ through integration, coordination and the sharing of information between different providers.”).
5. PCC’s Kardex is a list of the interventions and tasks within the resident’s formal “Care Plan.”
6. Health care providers’ responsibilities and obligations as they relate to electronically stored information are set forth under 42 U.S.C. §300jj-52 (2021), 45 C.F.R. §170.210(e)–(h) (2020), and ASTM E2147. This certification information is publicly disclosed on ONC’s Certified Health IT Product List at https://chpl.healthit.gov. In fact, PCC certifies that it complies with federal certification criteria for audit reports under §170.315(d)(3).
7. PointClickCare, Document Manager, https://pointclickcare.com/products/document-manager/.
8. For more, see Charlene Harrington et al., Appropriate Nurse Staffing Levels for U.S. Nursing Homes, 13 Health Servs. Insights 1 (June 29, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7328494/.
9. Ctrs. for Medicare & Medicaid Servs., Design for Care Compare Nursing Home Five-Star Quality Rating System: Technical Users’ Guide (Apr. 2022), https://tinyurl.com/2p8h72sj.
10. The Minimum Data Set is part of the federally mandated process for clinical assessment of all residents in Medicare or Medicaid certified nursing homes and non-critical access hospitals with Medicare swing bed agreements.
11. To learn more about CMS’s Patient Driven Payment Model, visit https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/PDPM.
12. PointClickCare, Customer Relationship Management (CRM), https://pointclickcare.com/products/crm-customer-relationship-management/.
13. PointClickCare, Performance Insights, https://pointclickcare.com/products/performance-insights/.