Earlier this month, a federal grand jury in Texas indicted a former hospital executive for making false statements in connection with the hospital’s meaningful use attestation for fiscal year 2012. According to a Department of Justice announcement, the executive allegedly attested that Shelby Regional Medical Center met the meaningful use requirements under the Medicare Electronic Health Records (EHR) Incentive Program for fiscal year 2012 when the hospital relied primarily on paper records. The executive, who is also accused of identity theft in connection with the attestation process, faces up to five years in federal prison for making a false statement.

Although the alleged conduct described in the indictment may sound like a particularly egregious violation of the meaningful use requirements, providers can face significant repayment obligations under the Medicare and Medicaid EHR Incentive Programs for much more benign conduct. For example, a health care system announced in 2013 that it had discovered 11 of its hospitals had improperly claimed EHR incentive payments as a result of an administrative oversight. The system ultimately repaid $31 million of meaningful use incentive funds.

Since 2011, the federal government has doled out more than $19 billion in incentive payments under the Medicare and Medicaid Electronic Health Records Incentive Programs, with nearly $12 billion paid through the Medicare EHR Incentive Program through December 31, 2013.

The consequences of noncompliance with EHR Incentive Program requirements are severe. If a provider fails to satisfy even one measure during an EHR reporting period, the provider is not eligible to receive incentive payments for that period. There is no allowance for a partial payment in cases of substantial compliance with EHR Incentive Program requirements. If a hospital, critical access hospital (CAH), or eligible professional (EP) attests that it is a meaningful user of certified EHR technology and the representation is false but the hospital, CAH, or EP accepts federal funds under Medicare and Medicaid EHR incentive programs, the organization potentially has submitted a false claim or misrepresentation, which may be actionable under the False Claims Act or other federal statutes. In addition, all providers who have received EHR incentive payments face potential meaningful use audits by a CMS contractor, Figliozzi and Company, of the provider’s compliance with EHR Incentive Program requirements.  Providers who fail the audit must repay incentive funds or the funds will be recouped.

As the federal government’s total meaningful use payments continues to grow, providers can expect to see more and more cases involving repayments or recoupments of improperly received incentive funds, including cases involving claims of false statements and related liability.

Find out what your organization can do to better prepare to substantiate compliance with meaningful use requirements by joining us on March 13, 2014, for a complimentary webinar, "Meaningful Use, Audits, and False Claims Act: The Perfect  Storm," the first in our Reinventing the Hospital webinar series on innovation in health care.