An interview with Jeffrey W. Short of Hall Render
Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs provided incentive payments to eligible physicians who self-attested to their meaningful use of certified EHR technology. Attorney Jeffrey W. Short of Hall, Render, Killian, Heath & Lyman says Medicare’s retrospective audits are requiring some physicians to pay Medicare back the incentive payments they received. Due to the potential for these paybacks, internal audits for these attestations should be added to due diligence for physician practice sales.
Since 2011, over 300,000 eligible physicians have registered under the Medicare and Medicaid Electronic Health Record Incentive Program. Providers have been paid over $9.0 billion by the government. To receive the maximum incentive payment, eligible physicians must have started participating by 2012 and demonstrated meaningful use of certified EHR technology for each of the years they participate in the program.
“These programs have a self-attestation for the right to receive payment. They go to a website and say ‘yes I have a certified EHR and here are measures to show I am a meaningful user’,” says Short. “The funds typically move through Medicare in four to six weeks.”
Now, Medicare is auditing providers that received payments under the program. CMS has engaged the accounting firm Fagliozzi & Company in New York to perform the random audits.
According to Short, the steps necessary to achieve meaningful use is subject to interpretation.
One common misnomer was the belief that a practice could buy a certified EHR system and only purchase the functionality they needed to report the minimum number of meaningful use measures. However, providers that did not purchase a complete certified EHR system are failing the audits. These physicians are required to pay back the incentive payments they received because they did not have the complete certified EHR system.
“The payments were predicated on the use of certified EHR technology. People thought they had bought certified systems, and they didn’t,” says Short. “They thought they only needed to buy functionality to do five things—actually the systems were required to have all functionality. If you were not using a complete certified system, it doesn’t count”
Short says providers can go to CMS’s Certified Health IT Product List (CHPL, pronounced the “chapel”) website and enter their EHR system’s product numbers to see if they were using a complete certified system. However, he encourages them to check with their vendor to obtain the correct numbers for the EHR they are using.
“There are pages of products from some vendors,” says Short. “You have to pick the right one when using CHPL. Have the vendor tell you what number to put in. Do not guess.”
Short estimates that less than five percent of providers didn’t purchase a complete certified system. However, he believes that a bigger problem is that many providers have not kept adequate documentation to prove they meet the meaningful use requirements.
“Every EHR has a report for meaningful use proof,” says Short. “If you didn’t run the report, print it, and keep it, it may give a different meaningful use metric if you run it at a later date.”
To prevent this situation from occurring after a practice changes ownership, Short recommends conducting an internal audit during due diligence to assess the risk of a payback for both documentation of proof, as well as the use of complete certified EHR systems. Buyers and sellers should develop a meaningful use work file that will be ready if and when an audit occurs.
The parties can also address who would be responsible for the payback amount in the transaction documents.
“The payments were paid to the person with the NPI,” says Short. “If a physician was employed at the time, they may have assigned the payment to their employer through their employment agreement. If you bought the practice, was this refund addressed in the transaction documents?”
Short says the waters are muddied even more if an employed physician has changed employers during the interim period. If a physician’s former employer was assigned the meaningful use payments and failed the audit, will the physician or physician’s new employer be able to recoup the payback amount when the auditors come knocking?
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Jeffrey W. Short is an attorney with Hall, Render, Killian, Heath & Lyman, P.C. in Indianapolis, Indiana. He can be contacted by email at jshort@hallrender.com or by phone at (317) 977-1413.