A Tale of Meaningful Use Injustice

By Jim Tate, EMR Advocate
Meaningful Use Audit Expert
Twitter: @JimTate, eMail: audits@emradvocate.com

Last week I wrote a post detailing some of the issues I had run across as I have helped eligible hospitals (EH) appeal their failed CMS EHR Incentive audits. At the audit level there is a need for a review that “goes by the book”. That is completely understandable and I would imagine the Final Determination would be based on a fairly black and white basis. Either you strictly achieved and documented MU or you didn’t.

The appeal process, however, allows the EH to submit additional documentation in support of their attestation. Clarification can be brought forth and offered. Issues that are outside the scope of the auditors, but are still relevant to the issue, can be introduced. Typically this additional review works fairly well, but not in all cases. When it doesn’t, something needs to happen.

Case in point: I was contacted last month by a small EH in a rural community. They had just been notified that they had a failed a meaningful use audit and were facing the recoupment of over $750,000. The failure was based on one issue: “Failed to demonstrate access to a CEHRT system”. OK, stick with me for the small print. In 2011, 2012 and 2013 a requirement for achieving MU was proof of access to a “complete EHR”. This meant that a chiropractor who cannot legally prescribe medications still had to have e-Prescribing software. A dentist is probably not taking vital signs or giving flu shots but still had to have that certified functionality. Even if MU was achieved, and the EP or EH was able to claim exclusions, they still had to bear the expense of unnecessary software. This scenario, having to purchase software that would not be needed to achieve MU, was identified as problematic and corrected by the Final Ruling published in the Federal Register on Tuesday, September 4, 2012. The redefinition of Certified Electronic Health Records Technology (CEHRT) was accomplished to correct a confusing issue that was admitted by the regulatory body to be not “in plain language“ and not having “requirements readily understandable”. The revised definition of CEHRT was adopted in an effort to encourage “reducing regulatory burden, providing more flexibility to the regulated community, and making regulatory text more understandable.”

Sorry for all those details but I want to lay out the facts as clearly as possible. The EH failed their meaningful use audit because they were able to legitimately claim an exclusion for the immunization measure but did not go to the additional expense of paying for an immunization module.

The referenced Final Rule, redefining the definition of CEHRT, is actually dated during the attestation period that was audited. Since the regulatory body identified the original definition of CEHRT as problematic, and then took corrective action, we requested a reversal of the audit determination. The audit failure was solely based on a definition of CEHRT that was found to be needing correction and was corrected by redefinition of CEHRT in the Final Rule dated September 2012.

The response from the HITECH EHR Incentive Program Appeals Team? “Based on our review of your Appeal Filing Request, supporting documentation, and the Program policies, we are denying your appeal. The decision is final and not subject to further appeal”.

Well, I will take the liberty to appeal. It is easy to get lost in policies and programs but at the bottom of all this is a rural hospital that had gone to great expense and effort to achieve MU. Because of a technicality that was recognized and since corrected they are still being told to give back an incentive they have earned.

I’m hoping something can be done short of litigation for justice to prevail. It is hard to imagine how anyone can review this case and not see the injustice. There is a small rural hospital that needs help. There is not much I can do but I can post a blog and appeal for help. Maybe there is someone out there who can help. If you can, let me know. This appeal decision should be reopened.

Jim Tate is known as the most experienced authority on the CMS Meaningful Use (MU) audit and appeal process. His unique combination of skills has brought successful outcomes to hospitals at risk of having their CMS EHR incentives recouped. He led the first appeal challenge in the nation for a client hospital that had received a negative audit determination. That appeal was decided in favor of the hospital. He has also been successful in leading the effort to reverse a failed appeal, even after the hospital had received notification of the failure with the statement, “This decision is final and not subject to further appeal”. That “final” decision was reversed in less than a week. If you are a hospital with questions or concerns about the meaningful use audit process, contact him at: audits@emradvocate.com. This post was original published on MeaningfulUseAudits.com.