November 2013—It is well known that the Centers for Medicare and Medicaid Services (CMS) is incentivizing (and arguably eventually requiring) certain healthcare providers to adopt meaningful use of certified electronic health record (EHR) technology. The adoption of EHR meaningful use will be necessary for healthcare providers to thrive under the new healthcare payment regime, which seeks to reward the value of services provided instead of volume alone.
To advance its overall agenda of increasing the quality and efficiency of, and access to the US healthcare system, it is anticipated that the Federal government will spend $30 billion on the Medicare and Medicaid EHR Incentive Programs from 2011 through 2019. Further, many Medicare providers will experience a payment reduction in 2015 unless they adopt meaningful use of EHR.
Based on an October 24, 2013 report issued by the US Government Accountability Office (GAO), it appears that the healthcare industry is increasingly responding to such carrot and stick approaches adopted by the Federal government—the industry is embracing meaningful use of EHR technology at an impressive rate. Consider, for example, that the Medicare EHR Incentive Program awarded $2.3 billion dollars during its first year (2011) but awarded $6.3 billion during the next year (2012).
The same GAO report also states the following:
- During 2012, 48% of the eligible hospitals were awarded payments (compared to 16% of eligible hospitals during 2011).
- Hospitals in rural areas were 3.1 times more likely to have been awarded an incentive payment for 2012 compared to 2011.
- During 2012, 31% of the eligible professionals were awarded incentive payments (as opposed to 10% during 2011).
That being said, it is almost certain that CMS will require some of the providers that received Medicare EHR incentive payments for 2011 or 2012 (as reflected above) to return such payments in full. Consistent with the GAO’s 2012 recommendations that “CMS take steps to enhance its processes to verify that providers met the requirements to receive incentive payments,” CMS has begun to audit the Medicare and Medicaid EHR Incentive Programs’ attestations of meaningful use. CMS has stated that “any provider attesting to receive an EHR incentive payment for either the Medicare or Medicaid EHR Incentive Program potentially can be subject to an audit.” In the same guidance, CMS states that, “[u]pon audit, the documentation will be used to validate that the provider accurately attested and submitted CQMs, as well as to verify that the incentive payment was accurate….if, based on an audit, a provider is found to not be eligible for an EHR incentive payment, the payment will be recouped.”
Those providers that are selected for a Meaningful Use incentive payment audit will receive an initial request letter from the CMS audit contractor. Note that this letter will be sent from a CMS e-mail address to the e-mail address provided during registration for the EHR incentive program. There is an abundance of information on the CMS website regarding the steps that providers should take, including the documentation that should be retained, in preparation for a potential meaningful use audit.
Healthcare providers who have questions regarding the Medicare or Medicaid EHR Incentive Programs, or the manner in which they should prepare for or respond to a meaningful use audit, are encouraged to: (a) review the CMS website, including the guidance referenced in this article; (b) reach out to their professional associations, knowledgeable consultants and healthcare legal counsel for additional information and further assistance; and (c) reasonably and promptly take proactive steps to prepare for scrutiny. Those providers who are organized and knowledgeable will be well positioned to thrive under the CMS Meaningful Use requirements and to defend themselves against any potential audit.
Adrienne Dresevic, Esq. graduated Magna Cum Laude from Wayne State University Law School. Practicing healthcare law, she concentrates in Stark and fraud/abuse, representing various diagnostic imaging providers, eg, IDTFs, mobile leasing entities, and radiology and multi-specialty group practices.
Kathryn Hickner-Cruz, Esq. graduated Magna Cum Laude from Wayne State University Law School. She specializes in health care transactional matters and compliance with federal and state health care regulations.
The authors are members of The Health Law Partners, P.C. and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.