Interested in getting involved with Medicare’s Electronic Health Records (EHR) Incentive Program? No doubt about it, it’s a wonderful program – especially since electronic records will be mandatory in the not-too-distant future. Nevertheless, you need to be mindful of your various obligations should you choose to sign up for the incentive program at this time or in the near future. As discussed below, the Centers for Medicare and Medicaid Services (CMS) is serious about compliance with the program’s requirements.

As you will recall, all Medicare and Medicaid providers are required to transition over to an electronic system of records by 2015. In fact, participating providers and hospitals will face significant penalties if they don’t implement and demonstrate meaningful use of EHR by the 2015 deadline. In light of this requirement, many health care providers are taking advantage of the government’s “incentive” program designed to encourage early and meaningful adoption and implementation of EHR. The government’s EHR incentive payments can be worth up to $44,000 over five years (assuming a provider started in 2011). Importantly, the last day to “attest” to meaningful use of EHR for 2011 is February 29, 2012. By that date, providers seeking to take advantage of the program for 2011 must essentially swear, or certify, that they have engaged in “meaningful use” of EHR during 2011.

While the incentive program has clear rewards, it is important that you carefully assess the program so that each and every requirement is fully understood before you decide whether to make the transition now (and reap the benefits of the incentive program), or later.

II.   Risks of Participation:

As we have discussed in prior articles, there are a number of “general” risks faced by health care providers seeking to transition over to an electronic medical records system. Several of those risks include:

• Programming Related Problems - Over the past two years, we have seen two cases involving health care providers who were “early adopters” of electronic medical records. When they purchased their EHR system, it was often difficult to make changes to the format and / or standard language first established in the system without engaging a programmer. As a result, when audited by a Medicare contractor, information in the records sometimes appeared to be inconsistent and / or incorrect. When you finally make the decision to transition over to an electronic system, it is essential that you make sure that your system allows for each block to be easily modified so that over time, the information you are gathering and the format you are using can be revised to better document any points which appear to be problematic.

• Cloning - It is essential that your EHR system be structured in such a way that treating providers are required to document the care provided in an individualized fashion. EHR systems which heavily rely on “drop-down” menus can be quite problematic due to the fact that when printed, they tend to look a lot alike. In some cases, Medicare contractors have alleged that a provider has “cloned” records, basing the allegation on the fact that multiple patient records appear to cite the same or similar language throughout the record.

• Lack of Personalization - Regardless of whether you are currently documenting patient care on paper or electronically, Medicare contractors have repeatedly stated their concern that the patient evaluations conducted and the observations documented are often not sufficiently described to show that a one-on-one evaluation of the patient took place. Similar in some respects to “cloning,” this concern is really focused on the lack of personalized observations noted which lead up to a unique and individualized diagnosis and recommendations for treatment by the treating provider.

• Electronic Signature Problems - In one recent matter (again involving an “early adopter” of EHR), it was difficult to tell whether the electronic signature of the provider had been affixed to the progress note. Although the provider’s name and title appeared at the end of the note, and a signature was printed above the name, the system did not electronically document when the note had been reviewed and approved by the provider. As a result, it was very difficult to tell whether the provider’s electronic signature has been formally affixed to the completed progress note. We recommend that you review your EHR system and verify that this is not a problem for your practice.

In addition to the myriad of “general” EHR risks faced by Medicare providers who have already transitioned to an electronic system of records, it is important to keep in mind that virtually every provider also faces practice-specific risks, unique to their circumstances. As with other risks faced by a practice, we strongly recommend that you conduct a “gap analysis” to assess your current compliance with applicable statutory and regulatory requirements. As you conduct the gap analysis, you should identify any and all general and / or practice-specific risks which should be either addressed now or monitored to help ensure that they do not result or cause a compliance violation.

III.   CMS Audits of EHR Incentive Payments:

Understandably, CMS is quite serious about compliance with the program requirements it has identified in connection with the EHR incentive program. As their website reflects, CMS refers to the review of incentive payment recipients as “EHR Incentive Program Post-Payment Audits.” While reference to post-payment audits may be confusing to those with experience handling traditional post-payment audits and appeals, that’s the way CMS has chosen to refer to these incentive program assessments.

According to their website, CMS contractors will be conducting audits of Medicare and dually-eligible providers, while States will each conduct their own audits of Medicaid-only providers. Importantly, the appeals process for the Federal and State audits will likely be different, with each State authorized to manage its own appeals process. However, both Federal and State contractors will be evaluating providers’ attestations of “meaningful use,” as well as compliance with eligibility, reporting and payment requirements.

Should a Medicare contractor determine that a health care provider has failed to comply with the program rules and is therefore ineligible for an EHR incentive payment (or should not have otherwise received payment in the first place), the incentive program payments made to the health care provider will be recouped. Importantly, CMS recommends maintaining documentation in support of “meaningful use” for six years, which may mean that CMS intends to conduct audits of providers until 2015 (when the incentive payments end) and even possibly later.

CMS will review both paper and electronic documentation that supports a provider’s attestation of EHR meaningful use, as well as Clinical Quality Measures.

IV.   Possible Concerns:

If a health care provider has yet to identify an EHR system which it feels fully addresses each of the current concerns identified by other providers, it may be in the provider’s best interests to hold-off making a selection at this time, despite the fact that delay could effectively cost the provider a significant amount of money. Although we applaud CMS’ efforts to encourage full participation as quickly as possible, it is very important that you identify a program which fully meets your documentation needs.

To the extent that you have already transitioned over to an electronic system, we strongly recommend that you review your participation obligations and ensure that you are continuing to meet those requirements. If a CMS contractor conducts an EHR-related audit of your practice (or a practice for whom you handle the coding and billing), it is important to keep in mind that there is nothing to restrict them from expanding their review to include an assessment of your medical necessity, documentation and coding practices. With the initiation of EHR incentive program-related audits, it is more important than ever that you ensure that your medical necessity, documentation, coding and billing practices fully comply with applicable statutory and regulatory requirements.

Liles Parker attorneys have extensive experience conducting “gap analyses,” and drafting / implementing tailored Compliance Plans for a wide variety of health care providers, group practices and third-party billing companies. In addition, our attorneys are skilled in handling administrative appeals of denied claims and in counseling providers on a variety of Medicare-related problems and concerns. For more information, please call us today for a free consultation at 1-800 (475) 1906.