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Friday, May 1, 2015



As all participants in the EHR Incentive Program should now know, the Centers for Medicare & Medicaid Services (“CMS”) is providing incentive payments to those Eligible Professionalswho attest to meeting certain Medicare meaningful use requirements(“Meaningful Use”). In order to receive the payments, Eligible Professionals must attest to achievement of “meaningful use” of their EHR systems in each stage of the program.  There are three distinct stages of the program - appropriately called Stage 1, Stage 2 and Stage 3 - which are designed to advance the program.  For example, each stage is meant to build upon the stage that came before it to expand usage and integration of the EHR system.  If an Eligible Professional has trouble meeting the Stage 1 requirements, chances are he or she will not be able to meet the more comprehensive requirements of Stage 2 or Stage 3. Currently, all providers will be attesting to Stage 1 Meaningful Use through 2013.  Stage 2 requirements do not become effective until at least 2014.

Stage 1

Stage 1 Meaningful Use requires Eligible Professionals to meet threshold standards in 15 core measures, plus 5 out of 10 optional menu measures, which should include at least one public health measure.  Among all core and menu measures, the Eligible Professional must include a minimum of 6 clinical quality measures (“CQMs”).  The first reporting period for Stage 1 was any period of at least 90 consecutive days in the calendar year 2011.   The second reporting period will be the calendar year 2012 and the third will be the calendar year 2013.  Only Eligible Professionals who began Meaningful Use participation in 2011 will attest to Stage 1 for three years. All participants who began Meaningful Use participation after 2012 will only attest at the Stage 1 level for two years.  Eligible Professionals attest to their levels of Meaningful Use online using the CMS attestation module.  The information submitted and relied upon for attestation is generated by the Eligible Professional’s EHR system.  It is critically important that the Eligible Professional retain the documents used at the time of attestation in the event of an audit.  Often times, with many EHR systems, these documents cannot be re-generated at a later date.  Although it is the Eligible Professional’s responsibility to produce documentation in the event of an audit, it is a good idea to make sure your EHR services agreement places a similar obligation to maintain documentation on the EHR vendor.  This will be a valuable backup should the Eligible Professional become unable to rely on his record.  Documentation should be retained for six (6) years post-attestation.


The Audit

All Eligible Professionals who participate in Meaningful Use and attest are potentially subject to an audit of their entitlement to payments received.  CMS has already begun performing post-payment audits covering 2011, as well as pre-payment audits covering the calendar year 2012, through their contractor, Figliozzi & Company, Certified Public Accountants.  Eligible Professionals who have been selected for audit will receive a letter from Figliozzi & Company, with the CMS logo on the letterhead.  The letter will state that they are a CMS contractor for conducting Meaningful Use audits.  A HIPAA covered entity is allowed to disclose Protected Health Information to a health oversight agency for activities authorized by law, such as audits.  The fact that a covered entity participates in a CMS reimbursement program gives CMS and its contractors the authority to conduct oversight, i.e., to audit the covered entity for compliance with applicable requirements.  The disclosure is also exempt from HIPAA’s patient authorization mandate because it is “required by law.”  Under the EHR incentive program, a participating covered entity is required by law to provide documentation supporting attestation and entitlement to EHR funds.3 The Protected Health Information disclosed should be only that required to provide the necessary documentation to support attestation.

If the Eligible Professional is notified that he or she has been selected for a Meaningful Use audit, he or she will have only two weeks to gather and submit to the auditors all of the documentation he or she relied upon in making his or her attestation.  Timely submission of the appropriate documents will help the Eligible Professional avoid additional inquiries and risk of loss of Meaningful Use payments.  The Eligible Professional basically must be able to provide proof of the basis for his or her attestation that qualified him or her to receive Meaningful Use payments.  This will often require working very closely with the EHR vendor so it is important to select a vendor that is not only well versed in Meaningful Use requirements and the audit process but also responsive and attentive to the needs of its clients.  Documents produced in response to an audit should include, at a minimum, screen-shots and/or more formal summary reports (a “Report”) produced by the EHR system showing the numerators and denominators for the various measures, a clear indication of the time period the Report covers, and a clear indication that the Report was prepared for the Eligible Professional.  The Eligible Professional must also have documentation to support any claimed exclusion from a particular measure.  Failure to provide timely, sufficient documentation in response to an initial audit letter could set the Eligible Professional up not only for a more thorough review of that attestation period (including the possibility that patient records will be reviewed or even an on-site review and demonstration of the EHR system), but also result in the Eligible Professional being selected for a pre-payment audit.  Attention to detail and retaining the necessary documentation at the front end of an attestation period is the only way to defend an audit down the road. 


Preparation for an audit is critical for every single measure attested to by the Eligible Professional.  If an Eligible Professional is found not to have met the Meaningful Use requirements for even one of the measures, the entire payment will be recouped.  There is no allowance for a partial recoupment in cases of substantial, but incomplete, Meaningful Use.


CMS has an appeals process for Eligible Professionals who do not pass their Meaningful Use Audit.  Appeals are permitted to be made in two separate categories: (i) the Eligible Professional met the program requirements and should have received payment but did not due to circumstances beyond the Eligible Professional’s control (an “Eligibility Appeal”) or (ii) the Eligible Professional did use appropriate technology and met the Meaningful Use requirements but, either (a) attested improperly, (b) used non-certified EHR technology or, (iii) for some reason had an adverse audit result (a “Meaningful Use Appeal”).  

Looking Ahead

In order to be able to meet the requirements of Stage 2, which currently goes into effect in 2014, all Eligible Professionals will have to upgrade their 2011 Certified EHR to 2014 Certified EHR.  Many physician advocacy groups are seeking a delay in the Stage 2 compliance requirements due to the unexpected difficulty and delay in obtaining, installing and receiving training with regard to the necessary upgrades.  It is unlikely that a decision to delay Stage 2 compliance requirements will be made; therefore, all Eligible Professionals should continue all efforts to upgrade by the deadline.


A prompt and thorough response to a Meaningful Use audit is critical, as is persistence and attention to detail.  Working with health care consultants and/or counsel experienced with Meaningful Use requirements and the audit and appeal process will help ensure that every physician and medical practice retains the payments they’ve worked so hard to earn.

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