EHR Incentive Programs / Meaningful Use

EHR Incentive Programs

The Medicare and Medicaid Electronic Health Care Record (EHR) Incentive Programs provide incentive payments to eligible healthcare professionals and hospitals as they demonstrate meaningful use of certified EHR technology. To qualify for incentive payments, participants must attest to their “meaningful use” of Certified Electronic Health Record Technology (CEHRT) EHR technology by meeting the thresholds set forth in the meaningful use definition, which is being rolled out in three stages.

The EHR Incentive Programs offer providers an opportunity to receive financial incentives for integrating EHR technology, but they can also raise potential false claim issues in connection with the meaningful use attestation. Providers engaged in the programs may also find themselves subject to a CMS meaningful use audit, making it imperative for providers to ensure they have complied with the documentation and compliance requirements or risk recoupment of incentive payments. Our attorneys can assist in evaluating and documenting compliance with the meaningful use standards on a proactive basis prior to submission of the attestation. We also assist providers in responding to meaningful use audit requests and defending meaningful use audit appeals.

Meaningful Use Attestations

Providers participating in the EHR Incentive Programs are required to attest to their meaningful use of certified EHR technology in order to qualify for incentive payments under the program. Attesting that one has fully met the meaningful use criteria and objectives can raise false claim concerns in some situations. The False Claims Act prohibits a person from knowingly presenting, or causing to be presented, a false or fraudulent claim for payment to the federal government. In the case of a meaningful use attestation, the provider is submitting a claim for the EHR incentive payment to the federal government that indicates that the participant has successfully completed the required objectives and measures. In cases where the provider actually falls short of meeting one or more of the threshold requirements, the attestation (or retention of incentive payment based on the attestation) can arguably amount to a potential false claim.

The potential for false claims liability raises the stakes for providers to fully understand the components of the meaningful use measures they are attesting to.   For example, one component of the meaningful use attestation is completion of the HIPAA Security Rule risk analysis, which providers may not realize involves an assessment process and specific documentation requirements. Attesting to meaningful use before meeting the security requirements could increase one’s potential false claims liability. We can assist providers in documenting and demonstrating their successful compliance with the meaningful use objectives prior to filing the attestation. This may include documentation or reports from a certified EHR system that supports the values entered into the Attestation Module for clinical quality measures as well as payment calculations. And while an EHR system may provide certain necessary data, there may be additional steps the attesting provider needs to take in order to fully comply.

Meaningful Use Audits

Retention of meaningful use documentation also plays an important role for providers faced with a meaningful use audit.   Providers who receive EHR incentive payments as part of the Medicare or Medicaid EHR Incentive Programs may be subject to audits conducted by CMS or the applicable State Medicaid Agency anytime in the six-year period following attestation. The audits typically involve the underlying documentation that supports the meaningful use attestation data; which makes proactive, comprehensive compliance with the meaningful use objectives and standards at the time of the attestation critically important. Supporting documents may include the following: documentation that the EHR is certified; report(s) from the certified EHR that denote the specific provider and timeframe covered; documentation/screen shots of yes/no measures; documentation of the HIPAA Security Rule Risk Analysis; documentation of exclusions for the specific provider; documentation of transmissions (e.g., to public health agencies with confirmed receipt); documentation of attestation.

Meaningful use audits may be conducted on a pre-payment or post-payment basis. Providers selected for a pre-payment audit will typically receive a letter requesting documentation to support the submitted attestation data prior to the release of the incentive payment to the provider. In the case of post-payment audits, the provider may be required to submit supporting documentation to validate their attestation data after EHR incentive payments have been made. The audit review process for both pre-payment and post-payment audits generally begin with a review of the information provided in response to the audit request making it all the more important for providers to submit a timely and organized response. If the provider is not found to have been successful in meeting meaningful use and therefore ineligible for the EHR incentive payment, the payment will be recouped.

Providers found ineligible for the EHR incentive payment are entitled to appeal audit findings through an appeals process. Medicare eligible professionals, hospitals and critical access hospitals have a 30-day timeframe to appeal audit findings to CMS. The timeframes for Medicaid EHR meaningful use appeals may vary from state to state as the audits and appeals are handled by the applicable State Medicaid Agency. In either case, it is important that appeal requests and supporting documentation be comprehensive, organized and submitted timely.

Our EHR Incentive Program / Meaningful Use Services Include:

  • Providing compliance assistance in the meaningful use attestation process, including completing the HIPAA Security Rule Risk Analysis
  • Reviewing and organizing documentation to support meaningful use attestation
  • Researching applicable statutory, regulatory and sub-regulatory guidance and documentation requirements as well as providing practical guidance for documentation efforts
  • Evaluating meaningful use audit request letters
  • Reviewing supporting documents for submission in response to an audit request letter
  • Communicating with CMS, its audit contractor or the applicable State Medicaid Agency to obtain clarification in the audit review process
  • Evaluating audit result letters
  • Identifying the applicable appeals process and key deadlines on appeal
  • Developing substantive written analysis and arguments for submission on appeal