The Centers for Medicare and Medicaid Services (“CMS”) provided over $20 billion in Meaningful Use incentive payments to hospitals and eligible professionals who attested to compliance with the EHR Incentive Program (the “Program”). Given this large expenditure, it should come as no surprise that CMS began auditing the supporting documentation of providers who attested to meeting the requirements of the Program in 2011. Oddly, Midwest providers seemingly had avoided the scrutiny of the audits. However, that seems to have changed in the past few weeks as we learned that numerous providers have received audit letters.

CMS has engaged Figliozzi and Company, CPAs, P.C. (“Figliozzi”) to conduct the audits. Most providers receive a letter from Figliozzi indicating their selection for an audit for a particular attestation period. The letters include a list of requested information and a two (2)- to four (4)-week deadline for a response. The letters note that the initial audit is a desk audit, but CMS reserves the right to request additional information and can also perform an on-site review if it deems necessary.

According to CMS, approximately 5% of hospitals and 25% of eligible professionals are failing the audits. Providers who fail face denial or recoupment of Meaningful Use incentive payments and potential sanctions. Given the likelihood of an audit and its risks, providers should prepare for the audits now.

Steps to Take Now:

  1. Assume an Audit Is Coming. No providers are immune. Eligible professionals who practice as solo practitioners, members of large groups, or employees of large health systems are receiving the audit letters.
  2. Prepare for the Audit Now. The two (2)- to four (4)-week response time is short, particularly if a provider identifies issues or problems related to retrieving or producing data. Proactive preparation for an audit will allow a provider to resolve questions and retrieve data without pressure from short time constraints.
  3. Maintain EHR Support Documentation. Do not rely on EHR vendors to supply documentation. Providers (not vendors) are responsible for producing documentation and should have copies of all supporting documentation on site and available at all times. Providers should maintain this documentation for at least six (6) years from the date of any attestation.
  4. Do Not Expect Any Latitude. CMS is serious. Figliozzi may grant an extension to produce data, but providers cannot rely on having any additional time to produce documentation. Also, CMS is denying or recouping Meaningful Use payments from providers due to inadequate documentation or non-compliance with the attested elements of the Program at a rate of approximately one of every four providers. Accordingly, anything a provider can do in advance to gather and prepare audit documentation has the potential to affect payment under the Program for a prepayment audit and recoupment of payment for a post-payment audit.
  5. Engage Legal Counsel. Given the size of the incentive payments and the inherent fraud and abuse risks that comes with government payments, providers should engage experienced legal counsel to facilitate review of the documentation, investigation of any concerns, and the audit response.