Legal and Practical Implications of Meaningful Use Attestation
With over $4 billion paid out to eligible professionals (EPs) and hospitals under the Medicare and Medicaid EHR Incentive Programs as of March 2012 according to CMS, many hospitals are gearing up for or have recently completed successful Meaningful Use attestation for their first Stage 1 90-day reporting period. The online attestation process itself, as experience shows, is fairly straightforward and can be completed in a short amount of time. But making sure you have everything to support that you were a “meaningful user” during the applicable reporting period requires careful planning and documentation.
Know what you are attesting to. The federal False Claims Act imposes liability on any person submitting a claim to the federal government that he or she knows, or should know, is false. No proof of specific intent to fraud is required and “knowledge” includes (1) actual knowledge of the information; (2) deliberate ignorance of the truth or falsity of the information; or (3) acting in reckless disregard for the truth or falsity of the information. State laws may also result in civil or criminal penalties for false claims.
By attesting, the hospital or EP is submitting a claim for payment from the government. As such, any misrepresentations, material omissions, false claims, statements or documents are subject to prosecution under Federal or State criminal laws and potentially civil penalties. With all hospitals and EPs on the hook for visits from both CMS and the respective State Medicaid auditors, they must be prepared to show proof that they accurately attested to the best of their knowledge to all measures and objectives and other meaningful use requirements having been met.
It is therefore critical, that, before attestation, the hospital or EP reasonably have the knowledge to attest that it was a meaningful user during the applicable EHR reporting period and that all data is (1) accurate and complete to the best of his or her knowledge; (2) includes information on all patients to whom the measure applies; and (3) for CQMs, that the numerators and denominators were generated as output from certified EHR technology.
At an absolute minimum, the hospital or EP must ensure that all measure thresholds were appropriately met, all patients to whom a measure applied were included in the denominator (or properly excluded), and interpretations of any “grey areas” are clearly documented. The hospital or EP should be familiar with any clarifying language in the Preamble to the EHR Incentive Programs Final Rule as well as any relevant and available CMS Frequently Asked Questions.
Other practical considerations to support attestation and defend against potential audit by CMS or the State include:
- Have all data readily available that must be entered during the attestation process (e.g., CMS EHR Certification Number, method for calculating ED visits, all applicable numerators and denominators). CMS has made available an Attestation Worksheet for assistance with the online attestation process.
- Document all certified EHR technology reports and supplemental data reports, as well as measure checklists, screenshots, test results and any assumptions or processes concerning workflows or interpretations for any given individual measure that support meaningful use during the applicable EHR reporting period. Be prepared to show documentation to support all “yes/no” attestations. For example, documentation for “exchange key clinical information” could include potentially screenshots of the test information that was sent to the third party health care provider and the testing “script” showing the date and success or failure of the exchange.
- When using multiple certified EHR systems, CMS as of April 20, 2012 will permit those numerators and denominators generated by the respective certified EHR systems reports to be added together, rather than requiring the hospital or EP to reconcile the reports to account for unique patients as CMS required in the past. If a hospital or EP has already attested and reconciled for unique patients, keep all reports used to aggregate the data and that support the numerators and denominators attested to.
- Keep all documentation to support your meaningful use, including to support patient volume thresholds, and incentive payment calculations for the Medicare and/or Medicaid EHR Incentive Programs, for a period of six years from the date of your attestation (three years to support Medicaid Adoption/Implementation/Upgrade payments).
Remember that for hospitals, July 3, 2012 is the last day to begin your 90-day reporting period for Stage 1. Be sure also to keep an eye on both the CMS and your State’s EHR Incentive Program websites for additional information regarding audits or updates to the respective Meaningful Use programs. Subscribing to the CMS EHR Incentive Program Listserv will ensure that you receive any new or updated FAQs from CMS as well as other important information about the EHR Incentive Programs.
Oscislawski LLC and Blass Affiliates have teamed up to help a number of hospitals successfully attest for Meaningful Use Stage 1. The experienced consultants at Blass provide hands-on guidance and software compliance management support to help clients succeed with Meaningful Use through ComplyAssistant, its web-based compliance management tool, and the knowledgeable attorneys at Oscislawski LLC keep on top of Meaningful Use regulatory developments and offer legal interpretation and guidance to clients.
