The Final Rule and Meaningful Use Audits

Jim Tate

By Jim Tate, EMR Advocate
Meaningful Use Audit Expert
Twitter: @JimTate, eMail:

The long awaited Final Rule gave providers a clearer view for 2015 – 2017 and Stage 3 Meaningful Use (MU). Some of the most fascinating details are found in the nuances buried in the response to public comments. The careful reader is provided insight into the CMS position on the importance of a number of important issues including the MU requirement for a Security Risk Analysis.

Several commenters stated that inclusion of this objective was superfluous and redundant, as it is already required by HIPAA. Another suggested that we accept compliance with the HIPAA Security Rule as fulfillment of this objective. A commenter noted that it is confusing when there are requirements from more than one oversight agency. They noted that protecting patient health information is in the purview of the OCR.….We disagree. In fact, in our audits of providers who attested to the requirements of the EHR Incentive Program, this objective and measure are failed more frequently than any other requirement.

The Final Rule also weighed in on the issue of the audit/appeal process. Public comments were received concerning the difficulty some providers were having with communication and notification due to email related issues. CMS says that is up to the provider to make sure things work on their side,

Finally, we note that it is incumbent on providers to maintain the appropriate contact information in the system of record and regularly verify that their contact information is correct. It is this contact information provided by the EP, eligible hospital, or CAH which we use to notify the provider of any status update or audit request for the EHR Incentive Programs. Once notification has been sent, it is also this contact information which is used by the auditors to communicate with the provider on status, documentation requests, and any other necessary items in order to expedite the audit process and ensure the use of verified and authorized contact information for the EP, eligible hospital or CAH.

The Final Rule contained some text that I found not entirely rooted in reality based on my personal experience with quite a few audits and appeals involving both eligible professionals and hospitals.

….we note that providers may contact us directly and we will work with them to understand their audit or appeal status, review any determinations and provide information related to the programs. We also appreciate those who provided suggestions for additional guidance which might assist the auditors to make determinations on certain requirements for the program.

I have documented numerous instances of a flawed appeals process. This includes “lost appeal submissions”, “inconsistent rulings”, and the presence of “two sets of rules”. Details are available for your review in these posts: A Tale of Meaningful Use Injustice and CMS Audit Appeals Process Leaves Providers Desperate for Clarity. I have contacted numerous CMS officials trying to schedule a call to provide feedback on the effect these practices are having on providers as they try to comply with the MU program. I have even offered to travel to Washington for a meeting. I have been turned down in both cases.

Along these same lines of improving the MU incentive process, the Office of Inspector General (OIG) has a stated mission “to protect the integrity of Department of Health & Human Services (HHS) programs as well as the health and welfare of program beneficiaries.” The OIG Work Plan for 2015 included the performance of provider MU audits.

We will review Medicare incentive payments to eligible health care professionals and hospitals for adopting EHRs and the Centers for Medicare & Medicaid Services (CMS) safeguards to prevent erroneous incentive payments. We will review Medicare incentive payment data from 2011 to identify payments to providers that should not have received incentive payments (e.g., those not meeting selected meaningful use criteria). We will also assess CMS’s plans to oversee incentive payments for the duration of the program and corrective actions taken regarding erroneous incentive payments.

Earlier this year one of my clients was the recipient of an OIG MU fact finding audit. The purpose of the oversight audit was to determine whether the incentive payment program is in “accordance with Federal and State requirements”. I contacted both OIG’s Inspector General for Audit Services as well as the Inspector responsible for my client’s audit and offered to provide information relevant to the process. Haven’t heard from either of those folks either. Reminds me of the classic Pink Floyd lyric. “Is there anybody out there?”

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: