A recent U.S. Supreme Court decision has pushed some medical practices participating in federal programs to update their medical record retention policy.
In 2013, Billy Hunt, a private party, filed a complaint under the False Claims Act (FCA) against two government contractors, alleging that they had defrauded the federal government. The case made its way to the U.S. Supreme Court in 2019, which decided whether the statute of limitations had prevented Mr. Hunt from bringing suit. See Cochise Consultancy, Inc. v. United States ex rel. Hunt.
Previously, lower courts have interpreted the FCA as providing for two statute of limitations that applied to private parties (also called “whistleblowers”) depending on whether the government intervened in the action. This interpretation barred some FCA or qui tam suits – action brought for the government by a whistleblower alleging that another party or entity has committed fraud or has violated some government regulation or contract – because more than six years after the date of the statutory violation had elapsed. In finding that this interpretation of the FCA is invalid, the Supreme Court held in part that the statute of limitations provisions in the FCA allows a private party to bring a civil suit under the FCA up to ten years from the date of the alleged misconduct.
What does that mean for my medical practice?
Now is the time to review your practice’s record retention policy. In Louisiana, medical and dental records must be retained by a physician or dentist in the original, microﬁlmed, or similarly reproduced form for a minimum period of six years from the date a patient is last treated by the physician or dentist. La. Rev. Stat. §40:1165.1(3)(a).
However, if your medical practice participates in federal programs, such as Medicare and Medicaid, you may want to consider revising your billing and medical record retention policies if you haven’t already. As illustrated under Cochise, a qui tam suit may be brought against a federal program participant up to ten years from the date of the alleged misconduct. Legally purging records too soon can make it difficult to defend any actions alleged years later.
For more information, please contact the LAMMICO Risk Management and Patient Safety Department at 504.841.5211.
Coverage For Actual or Alleged Billing Errors
LAMMICO provides coverage for defense costs and regulatory fines and penalties resulting from actual or alleged billing errors as part of our MEDEFENSE® Plus/Cyber Liability insurance coverage. Coverage extends to allegations made by governmental agencies, qui tam plaintiffs and contractors working on behalf of the government, such as Recovery Audit Contractors (RAC) and Zone Program Integrity Contractors (ZPIC) as well as commercial payors.
LAMMICO includes $10,000 of MEDEFENSE®Plus/Cyber Liability coverage in most provider policies at no additional charge to the insured. We offer the option to purchase higher limits of protection through our subsidiary agency, Elatas Risk Partners. Please contact Carly Thames, Elatas Account Executive, at firstname.lastname@example.org or 225.906.2062 for information about higher limits of insurance coverage.