According to a report issued last month by the Department of Health and Human Services’ Office of Inspector General (“OIG”), the Centers for Medicare & Medicaid Services (“CMS”) overpaid an estimated $729 million under the Medicare and Medicaid Electronic Health Record (“EHR”) Incentive Program (the “EHR Incentive Program”) to physicians and other eligible professionals who did not actually comply with federal meaningful use requirements. In addition, the Report estimates that CMS mistakenly paid $2.3 million in EHR incentive payments to eligible professionals who switched incentive programs. These overpayments represent approximately twelve percent (12.0%) of total Medicare/Medicaid spending.
Since the Report’s issuance, several professional associations have voiced concern over the prospect of CMS seeking to recover these overpayments. The primary issues raised by these groups (including Medical Group Management Association, American College of Physicians, American Medical Association, American Osteopathic Association) relate to whether the results of the Report stem from these professionals receiving improper payments or their failing to provide sufficient proof during the audit process.
As an example, one of the requirements tested in the Report was having clinical decision alerts. To meet the requirements, the randomly sampled providers were required to have five (5) such alerts. An example alert is for the EHR system to flag high medical dosage(s). During an audit, a provider may be able to demonstrate that the alerts were working at a point in time, but it would be impossible to prove that these alerts were in effect during the entire meaningful use reporting period unless the provider had taken a screenshot of the alert every day of the reporting period.
At this point, it is not entirely clear that provider need to be concerned about CMS trying to recoup these overpayments. In a written statement following the Report’s release, CMS stated that “….this administration is committed to turning the page and ushering in a new era of accountability. We stand committed to safeguarding federal funding by leveraging proven and new program integrity tools to prevent and identify waste, fraud and abuse.”
So, for the time being, at least, it appears that CMS will not take action to recover these overpayments. Nonetheless, it will continue to be important for healthcare professionals to make good faith efforts to satisfy these meaningful use requirements and have the evidence to support such attestations when audits are performed.