Kent
Circuit Court LC Nos. 17-010295-AR, 17-010296-AR,
17-010297-AR, 17-010298-AR, 17-010299-AR, 17-010300-AR,
17-010301-AR, 17-010302-AR, 17-011547-AR, 18-000250-AR
Before: Sawyer, P.J., and Borrello and Shapiro, JJ.
SHAPIRO, J.
Defendants
are former nursing aids or assistants charged with
intentionally falsifying medical records, MCL 750.492a. The
district court declined to bind over defendants, concluding
that the "member location sheets" that they
allegedly falsified were not "medical records" as
that term is defined by the Medical Records Access Act
(MRAA), MCL 333.26261 et seq. The circuit court
agreed and affirmed the district court's decision to
dismiss these 10 consolidated cases. The prosecution appeals
by leave granted, arguing that the lower courts erred in
holding that the member locations sheets were not medical
records. We agree. The member location checks that defendants
were required to perform were part of the health care
provided to the patients by the facility that employed
defendants. Because the member location sheets constitute
recorded information pertaining to that care, they are
medical records under the MRAA, which we conclude must be
read in pari materia with MCL 750.492a. However, we
also conclude that to convict defendants of intentionally or
willfully falsifying medical records in violation MCL
750.492a the prosecution must prove that they knew that the
member location sheets were medical records. We remand to the
district court so that it can determine whether the
prosecution can establish probable cause on that element.
I.
Defendants
were certified nurse aides (CNA) or certified nursing
assistants (CENA)[1]employed by a staffing company and assigned
to the Grand Rapids Home for Veterans (GRHV), a residential
and skilled nursing facility for military veterans and their
spouses, known as members. Many of the relevant patients
suffered from serious psychiatric problems or dementia and as
a result might elope or create a risk to themselves or others
in the facility while unattended. CNAs working at the GRHV
were required to perform member location checks for the
skilled nursing units at least every two hours to verify that
the members were present in their room and, if not, to verify
that the patient was located elsewhere in the unit.
Member
location sheets were a simple grid. The patients' names
were listed vertically and the times at which checks were to
be performed were listed horizontally. Thus, for each patient
listed there was a box to be completed reflecting whether or
not a location check was performed for that time period. Each
time a CNA performed a member location check, he or she was
to place their initials in the box for that patient and that
time. As long as a CNA laid eyes on a member, they could
initial the appropriate box on the member location sheet. The
parties stipulated prior to the preliminary examination that
the member location sheets were not maintained in a
member's personal medical chart, but instead in a central
location. The parties also stipulated that the GRHV destroyed
the location sheets after six months. Under the Public Health
Code (PHC), MCL 333.1101 et seq., a health care
facility must retain a patient's records for at least
seven years. MCL 333.20175(1).
The
member location sheets at issue in this case were filled out
completely, appearing to show that all member location checks
were completed. However, during a performance audit of the
GRHV, the Michigan Office of Auditor General determined on
the basis of video surveillance tapes that defendants had not
performed certain location checks as reported in the
corresponding member locations sheets.
On the
basis of this discovery, the Health Care Fraud Division of
the Attorney General's Office opened an investigation
into the GRHV. As a result of this investigation, each
defendant was charged with one count of intentionally placing
false information in a medical record or chart in violation
of MCL 750.492a(1). That statutory provision provides that
a health care provider or other person, knowing that the
information is misleading or inaccurate, shall not
intentionally, willfully, or recklessly place or direct
another to place in a patient's medical record or chart
misleading or inaccurate information regarding the diagnosis,
treatment, or cause of a patient's condition. [MCL
750.492a(1).]
The
statute goes on to provide, "A health care provider who
intentionally or willfully violates this subsection is guilty
of a felony." MCL 750.492a(1)(a).
Te
preliminary examination was held over the course of three
days. Relevant to this appeal, the GRHV's director of
nursing, Paula Bixler, testified to the varying levels of
cognitive impairment and physical restrictions of the members
in the skilled nursing units. Bixler explained that the
purpose of the member location checks was to insure the
member's health, safety, and well-being; specifically, to
ensure that members were not wandering or had eloped off the
unit. She testified that the purpose of the member checks was
not specifically to look for member incontinence, but a CNA
would be expected to address such a situation if they noticed
it. Also, if a CNA noticed that a member had fallen or was
experiencing a medical emergency, they are required to alert
a nurse.
Following
the preliminary examination, the district court found
probable cause that defendants were health care providers,
that the information they were recording was "regarding
treatment of these patients' condition," and that
"defendants knew that the information that they supplied
was misleading or inaccurate." However, the district
court did not "find that there's been any evidence
to suggest that these location sheets are medical
records." In reaching that conclusion, the court
considered the definition of medical record found in the
MRAA, which provides that a medical record "means
information oral or recorded in any form or medium that
pertains to a patient's health care, medical history,
diagnosis, prognosis, or medical condition and that is
maintained by a health care provider or health facility in
the process of caring for the patient's health." MCL
333.26263(h)(i). The district court said it was
arguable whether member location sheets "pertain to the
member's health care." But the court noted that a
medical record must be maintained by a health care provider
or facility, and the testimony at the preliminary examination
was that the member location sheets were not treated as
medical records by the GRHV. The district court also
indicated that the prosecution failed to show probable cause
that defendants intentionally or willfully placed information
in a medical record.
The
prosecution appealed to the circuit court, which affirmed the
district court's decision, agreeing with the district
court that the MRAA's definition of medical record was
applicable to MCL 750.492a(1). The circuit court concluded
that the member location sheets did not meet that definition
because they contained the names of multiple members, were
stored in a central location and were not maintained for
seven years as required by MCL 333.20175. The prosecution
moved for leave to appeal to this Court in each case. We
granted the application for leave to appeal and consolidated
the 10 cases.
II.
A.
The
prosecution argues that the lower courts erred in determining
that the member location sheets were not medical records ...