Preparing for Meaningful Use Audits

Many physicians, hospitals, and other eligible providers have attested to meeting meaningful use. CMS is now in the process of auditing providers on documentation relating to their attestation. What types of liabilities may apply for false attestation?

CMS provides financial incentives to eligible providers for the use of certified EHR (electronic health record) technology aimed to improving patient care so long as the provider can prove they have been engaged in “meaningful use”. The EHR Incentive Programs and the requirements for showing meaningful use increase with each of three stages of CMS’s implementation plan. Each stage requires eligible providers to attest to their having met the requirements of meaningful use. Providers who have attested to meaningful use began receiving incentive payments from CMS as early as 2011. These will continue through 2016 for Medicare or 2021 for Medicaid. CMS is now engaged in the process of auditing providers to determine whether they have actually met meaningful use as they have reported.

Over $24.6 billion dollars in incentive payments have been paid out by CMS since 2011. More than 95% of eligible hospitals have received financial incentive payment for EHR implementation or upgrade towards meaningful use. About 80% of eligible providers have also received payments. However, any payments made to providers who have attested but not meet meaningful use would result in an overpayment to the provider, subject to recoupment. There is no partial credit for meeting some of the elements of meaningful use. Meeting meaningful use is all or none. It is possible to change attestation information after the fact if the information is discovered to be incorrect by contacting the HER Information Center at 1-888-734-6433. If this applies, this must be done before an audit occurs. Besides recoupment, ineligible payments may have result in other problems, implicating (1) the Federal False Claims Act (FCA), (2) Fraud Enforcement Recovery Act (FERA), and (3) Affordable Care Act (ACA).

The False Claims Act (FCA), 31 U.S.C. § 3729 et seq., provides for liability for triple damages and a penalty from $5,500 to $11,000 per claim for anyone who knowingly submits or causes the submission of a false or fraudulent claim to the United States. As amended by the Fraud Enforcement and Recovery Act of 2009 (FERA), liability under the False Claims Act occurs when a person or entity:

1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

2) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; or

3) conspires to commit a violation of any of certain provisions of the False Claims Act (including the two listed above).

The FCA is the primary enforcement tool for combatting fraud and abuse in federal health care programs.

False claims, under Mikes v. Straus, 274 F. 3d 687 (2nd Cir. 200) can be (1) factually false or (2) legally false. Factually false is when a claim is submitted to the government for something never provided such as billing for an office visit when a patient was not seen. A claim is legally false, not just because the service failed to comply with legal mandates that would influence the government to pay for the service, but because the claimant falsely certifies compliance with a statute or regulation that is a condition required for payment. This is like when a doctor or hospital certifies compliance with the requirements of meaningful use in meeting electronic medical records performance in order to be paid a government incentive fee.

FERA expands federal FCA liability to include, among other things, retention of overpayments.

FERA creates FCA liability for knowingly retaining any overpayment. The Government now has an FCA remedy in many situations in which it would not have been able to sue the provider under the former reverse false claims provision or under the false claims and false statements liability provisions in 31 U.S.C. § 3729(a)(1)(A) and (B) and their predecessor provisions.

Under the ACA,

If a person has “received an overpayment,” the person shall “report and return the overpayment to the Secretary, the State, an intermediary, a carrier or a contractor as appropriate and provide notice of the reason for the overpayment. Overpayments must be reported and returned within 60 days after the date on which the overpayment was identified. Any overpayment retained by a person after the deadline for reporting and returning the overpayment is an “obligation” under the FCA. An overpayment that is not reported and repaid becomes a legal “obligation” to the government (as defined in FERA). The “knowing” failure to repay such an “obligation,” regardless of whether it was the result of an innocent mistake or an intentional act, is legally the same as if the money was obtained by fraud. There is no need for the government to prove that there was a specific intent to defraud.

Medicare audits are contracted to be performed by Figliozzi & Company (2012). CMS plans to audit 5-10% of providers and such audits may be performed up to 6 years after the provider performs attestation. Figliozzi will contact the provider/hospital with notice to conduct an audit by e-mail and/or mail and the provider will have anywhere from 10days to a month to provide requested documentation. If the information provided is inadequate, Figliozzi will conduct an on-site audit looking for documentation of the methodology used for documenting meaningful use along with numerator and denominator data reported to CMS. Based on its review of all available information, including screen shots of EHR data, Figliozzi will determine the outcome of its review. If the review is adverse, incentive payment recoupment will be demanded. The entire payment will be demanded in full and if not paid within 30 days, interest will accrue at 10%. Thereafter, if payment is received in 60 days, the matter shall be turned over to the Dept. of Treasury for debt collection. The Audit is subject to an appeal. Appeals form available at:

http://www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/Appeals.html

Preparing for an audit means maintaining proper documentation. All relevant documents should be maintained in a secure location documenting each period of meaningful use eligibility and attestation. Each objective and its measure, or the reasons they do not apply, must be documented including CQMs reporting. Hospital must document the number of discharges used in their payment calculations as well. All documents must be kept for at least 6 years after attestation.

Leslie Tar, Esq., LLM*

*Florida Health Law Attorneys, Florida Medical Board Defense Attorneys, Florida Medical License Defense Attorneys.

* Office location in Port Charlotte, Florida with service to Sarasota, Ft Myers, Naples, Tampa, Orlando, Vero Beach, West Palm Beach, Boca Raton, Ft Lauderdale, Miami, Gainesville, Tallahassee, Pensacola and throughout Florida and nationally.