By Jeffrey H. Brochin, J.D.
The Office of Inspector General (OIG) conducted a review of electronic health record (EHR) incentive payments made to eligible professionals (EPs) and hospitals by CMS pursuant to the Health Information Technology for Economic and Clinical Health Act (HITECH Act), and determined that hundreds of millions of dollars of the payments did not comply with federal requirements. The OIG recommended recoupment of $291,222 in payments to the sampled EPs who did not meet meaningful use requirements, attempted recovery of an estimated $729,424,395 in other inappropriate incentive payments, and other remedial steps (OIG Report, No. A-05-14-00047, June, 2017).
Background. The HITECH Act established Medicare and Medicaid EHR incentive programs to promote the adoption of EHRs and to improve health care quality, safety, and efficiency through the promotion of health information technology and electronic health information exchange. As an incentive for using certified EHR technology, the federal government makes payments to EPs and hospitals that attest to the "meaningful use" of EHRs. As of June 2014, Medicare had made EHR incentive payments to EPs totaling approximately $6 billion.
Provisions of the Act defined the types of professionals eligible to receive Medicare EHR incentive payments. EPs may be physicians, dentists, podiatrists, optometrists, or chiropractors. During 2011, the first year of the EHR incentive program, 141,649 EPs registered to participate in the program and were eligible to receive incentive payments for up to five years. However, a review of EHR incentive payments made to 250,470 EPs from May, 2011 to June, 2014 disclosed serious irregularities in the oversight of the program resulting in hundreds of millions of dollars’ worth of inappropriate payments being disbursed by CMS.
How the EHR program works. To receive an incentive payment, EPs are required to attest that they met the program requirements by self-reporting data through CMS’ online system, at which point the data is stored in the National Level Repository (NLR). The NLR is a provider registration and verification system that contains information on providers participating in the Medicare and Medicaid EHR incentive programs. EPs may not receive EHR incentive payments from both the Medicare and Medicaid EHR incentive programs in the same year. If an EP qualifies for EHR incentive payments from both the Medicare and Medicaid programs, the EP must elect to receive payments from only one program.
How OIG conducted the review. The OIG conducted the review to determine whether CMS’s oversight of the Medicare EHR incentive program was sufficient and whether EPs nationwide met the Medicare incentive payment program requirements and received appropriate incentive payments. The review covered EHR incentive payments totaling $6,093,924,710 that Medicare made to 250,470 EPs from May 2011 to June 2014 (the audit period). The auditors selected a simple random sample of 100 EPs who received 1 or more payments during the audit period and reviewed support for their attestations as to meaningful use measures. In addition, they reviewed all payments made to deceased EPs and to EPs who switched between Medicare and Medicaid programs in order to determine whether Medicare made inappropriate payments during the audit period.
What the review disclosed. The Government Accountability Office (GAO) had identified improper incentive payments as the primary risk to the EHR incentive programs, and the OIG report found obstacles that CMS and states faced in overseeing the Medicare and Medicaid EHR incentive programs. The obstacles left the programs vulnerable to making incentive payments to EPs and hospitals that did not fully meet requirements.
CMS did not always make EHR incentive payments to EPs in accordance with federal requirements. On the basis of a sample of 100 EPs, the auditors identified 14 EPs with payments totaling $291,222 that did not meet the meaningful use requirements because of insufficient attestation support, inappropriate reported meaningful use periods, or insufficiently used certified EHR technology. On the basis of the sample results, the auditors estimated that CMS inappropriately paid $729,424,395 in incentive payments to EPs who did not meet meaningful use requirements.
Furthermore, CMS conducted minimal documentation reviews of self-attestations, leaving the EHR program vulnerable to abuse and misuse of federal funds. CMS also made EHR incentive payments that were not in accordance with the program-year payment requirements when EPs switched between Medicare and Medicaid incentive programs. Specifically, the auditors identified 471 EHR incentive payments totaling $2,344,680 that CMS made to EPs for the wrong payment year. These errors occurred because CMS did not have edits in place to ensure that EPs who switched from one program to the other were placed in the correct payment year upon switching.
Recommendations. The OIG report recommended that CMS:
- recover $291,222 in payments made to the sampled EPs who did not meet meaningful use requirements,
- review EP incentive payments to determine which EPs did not meet meaningful use measures for each applicable program year to attempt recovery of the $729,424,395 in estimated inappropriate incentive payments,
- review a random sample of EPs’ documentation supporting their self-attestations to identify inappropriate incentive payments that may have been made after the audit period,
- educate EPs on proper documentation requirements,
- recover $2,344,680 in overpayments made to EPs after they switched programs, and
- employ edits within the NLR system to ensure that an EP does not receive payments under both EHR incentive programs for the same program year.
Implementing MACRA. On April 16, 2015, Congress enacted the Medicare Access and Children’s Health Insurance Program [CHIP] Reauthorization Act (MACRA) (P.L. No. 114-10). Among many other changes, MACRA established payment reforms that consolidated several programs into a Merit-Based Incentive Payment System (MIPS), including the Medicare EHR Incentive Program for EPs (now named "Advancing Care Information" under MIPS). On November 4, 2016, CMS issued a final rule implementing the reforms in MACRA (81 FR 77008). The changes under the Advancing Care Information element of MIPS replace the EHR incentive programs and alter the way Medicare EPs receive payments for being meaningful users.
In addition to the above recommendations, the OIG report recommended that as CMS implements MACRA, any modifications to the EHR meaningful use requirements include stronger program integrity safeguards that allow for more consistent verification of the reporting of required measures so that CMS can ensure that EPs are using EHR technology consistent with CMS’ goal of Advancing Care Information under MIPS.
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