Background
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 Professionals1 who attest to meeting certain Medicare meaningful use requirements2 (“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