For the past several years, the Centers for Medicare and Medicaid Services (“CMS”) has incentivized hospitals and eligible professionals to adopt and make “meaningful use” of certified electronic health records (“EHR”) technology through the Medicare and Medicaid Meaningful Use programs. Since the inception of these programs, over $16.6 billion in Medicare incentive payments and $8.6 billion in Medicaid incentive payments have been made to hospitals and eligible professionals. Approximately 90% of hospitals and 75% of eligible professionals now participate in these incentive programs. 

Given the broad participation in these programs and the large amount of dollars that have been paid from the federal fisc, CMS and the Office of the Inspector General (“OIG”) have taken steps to scrutinize the propriety of payments under these programs. In the most recent OIG Work Plan, OIG states that it will “review Medicare incentive payments to eligible health care professionals and hospitals for adopting EHRs and the [CMS] safeguards to prevent erroneous incentive payments.” CMS is currently auditing approximately five to ten percent of all participants in the Meaningful Use program through Figliozzi & Company, a contracted auditing firm.

The stakes in a meaningful use audit are high—failure to pass the audit will result in the recoupment of incentive payments and imposition of the Meaningful Use program’s Medicare payment adjustment. It may also result in allegations that the provider or supplier (or its management personnel) violated the False Claims Act and/or committed Medicare fraud. Enforcement of these provisions has already started:  at least one individual has been charged criminally for falsely attesting to meaningful use and providers have had to repay millions of dollars in meaningful use payments.

Based upon our experience with meaningful use audits, we recommend that hospitals and eligible professionals consider taking the following steps to document their compliance with the Meaningful Use program requirements and help prepare for a meaningful use audit:

  1. Appoint a specific individual to coordinate the meaningful use attestation process, including the maintenance of supporting documentation. Centralizing the attestation process will ensure that an identifiable person has a holistic view of the process and the data sources and inputs.
  2. At the time of attestation, gather all supporting documentation and either print it out and place it in a binder or file it electronically in a single file. This includes the EHR-generated reports to support the numerators and denominators, the documents used to support the yes/no attestation measures (e.g., submission to an immunization registry), a copy of the EHR agreement with the technology vendor, and a copy of the Office of the National Coordinator for Health Information Technology (“ONC”) certification. CMS has also provided guidance regarding suggested documentation.
  3. Make sure the documentation includes a security risk analysis dated prior to the end of the reporting period. Many providers and suppliers have failed to follow the technical requirements of this Meaningful Use program measure. In fact, due to the number of eligible professionals who have mistakenly attested to this measure, CMS issued specific meaningful use guidance concerning this requirement.
  4. Keep all supporting documentation for the relevant retention period. Documentation regarding Meaningful Use program measures and clinical quality measures must be kept for at least six years. Payment calculation data (e.g., cost reports) should follow current documentation retention processes followed by the organization.
  5. Conduct mock meaningful use audits to ensure that the information is retrievable and fully supports the attestation. Figliozzi & Company will request documents regarding:  (1) the EHR agreement with the technology vendor; (2) the percentage-based measures (typically satisfied by a report generated by the EHR system itself); and (3) the yes/no meaningful use measures. In the case of eligible professionals, information is also requested regarding practice locations and whether the eligible professionals provide at least 50% of their services at locations with certified EHR systems.

As noted above, the audit rate for the Medicare Meaningful Use program is high (five to ten percent of participants in the Meaningful Use program). The above steps should help to reduce risk and provide a streamlined path to a response should your hospital or practice receive a letter from Figliozzi & Company.