Proposal to Take Back EHR Bonuses Galls Med Societies

June 13, 2017

A government watchdog agency says that Medicare should recoup an estimated $729 million in electronic health record (EHR) bonuses paid to clinicians who didn't qualify for them.

Organized medicine is crying foul.

The decision to carry out the recommendation could ultimately fall to a US Department of Health and Human Services (HHS) secretary who historically has opposed government programs that created regulatory hassles for physicians.

The HHS Office of Inspector General (OIG) yesterday released an audit report on $6 billion paid to 250,000 clinicians in the incentive program for meaningful use of EHRs from May 2011 to June 2014. A random sample of 100 clinicians who had received at least one incentive payment revealed that 14 of them who had collected some $291,000 had not met all meaningful use requirements as they had attested.

  • Six clinicians couldn't provide a mandatory analysis of security risks

  • Four clinicians couldn't prove that they had generated at least one list of patients — another requirement — who had the same condition

  • Three clinicians could not provide patient encounter data to document that they had met various meaningful use measures

  • One clinician had 90-days' worth of patient encounter data when a year's worth was needed

  • One clinician did not use certified EHR technology as much as required

Based on this sample, the OIG estimated that the Centers for Medicare and Medicaid Services (CMS) paid out $729 million in bonuses to clinicians who did not earn them. Accordingly, the OIG recommended that CMS recover the $291,222 improperly paid to the clinicians in the sample group.

More significantly, it said that CMS should audit all meaningful use bonuses over the 3-year stretch to identify all undeserving clinicians and recoup the $729 million in mispayments. Furthermore, the OIG recommended that CMS review a random sample of meaningful use documentation to identify any mispayments after June 2014.

Responding to a draft of the report, CMS said it concurred with the first recommendation, but only partially concurred with the second and third, saying that it had begun to perform targeted, as opposed to wholesale, audits of bonus payments. The OIG responded that despite demurrals from CMS, it still recommended going after the $729 million and spot-checking meaningful use documentation beyond the audit's time frame.

There were other OIG recommendations, all of which CMS endorsed. One of them called for recouping $2.3 million in meaningful use bonuses — apart from the $729 million — that CMS mistakenly doled out through no fault of the clinician.

The last year in which clinicians and hospitals received meaningful use bonuses was 2016.

CMS Faulted for Lack of Clear Guidance on Documentation

The prospect of Medicare recouping $729 million in bonuses through a massive audit didn't set well with three medical associations contacted by Medscape Medical News.

"We would protest if they went through with this," said Robert Tennant, director of health information technology policy at the Medical Group Management Association (MGMA). "Going after folks who tried to meet arbitrary government requirements, who made a good faith effort, isn't fair."

Like other medical associations, the MGMA has complained about the government's meaningful use incentive program being onerously complex. Tennant said that this complexity, made worse by evolving requirements, helps explain why physicians flunked the OIG audit. "I'm not surprised some providers found it daunting to keep up with the changes," he said.

The requirement for a security risk analysis is a problem, Tennant noted, because CMS hasn't given clinicians sufficient guidance on how to meet it. "This is a real stumbling block for smaller practices," he said. "They're not security experts, they're clinicians."

A lobbyist for the American College of Physicians (ACP) said that the OIG audit identified "well known problems with the [meaningful use] program." In a statement issued to Medscape Medical News, ACP Vice President of Governmental Affairs and Medical Practice Shari Erickson said that clinicians who originally attested to meaningful use lacked clear, specific guidance on what documentation they needed for each requirement. As a result, they often didn't have the precise information that OIG auditors were looking for. And because meaningful use is a pass-fail system, a clinician would fail the OIG audit if documentation was missing for just one requirement.

"This (OIG) report does not show evidence of fraud and abuse within [meaningful use], but rather an example of what can happen when there is a lack of guidance established upfront and clinicians are not given credit for completing each measure successfully and instead can only earn a pass/fail grade," said Erickson.

Laura Wooster, a senior vice president of public policy at the American Osteopathic Association (AOA), told Medscape Medical News that she is worried a full-scale audit of all meaningful use bonus payments could run roughshod over her members. Physicians already have problems with the existing Recovery Audit Contractor program, also designed to recoup improper Medicare payments.

"Some physicians face overly aggressive contractors," said Wooster, noting that they're financially incentivized to recover payments. If CMS pursues meaningful use bonuses in a similar fashion, "we'd have concerns that a lot of physicians would be unfairly audited."

"Out of Step With His Philosophy"

All the fears about a wholesale clawback of meaningful use bonuses go up in smoke if CMS disregards the recommendation of the OIG and sticks to targeted audits. That course of action wouldn't be surprising given President Donald Trump's choice for CMS administrator, Seema Verma, who wants to make Medicare regulations easier, not harder, for physicians. And her boss, HHS Secretary Tom Price, MD, is like-minded.

"He's not a huge fan of the meaningful-use program," noted the MGMA's Robert Tennant.

The idea of Dr Price, a former Republican member of the House, taking back $729 million from physicians "would be out of step with his philosophy," added Laura Wooster at the AOA. "But he also is responsible for a large government program."

Medscape Medical News asked HHS which way Dr Price wants to go, and received this statement from CMS:

"This administration is committed to turning the page and ushering in a new era of accountability.... Providing high-quality care to Medicare beneficiaries while being responsible stewards of taxpayer dollars remains a top CMS priority, and we recognize the value [that] data validation and auditing bring to our programs.

"We stand committed to safeguarding federal funding by leveraging proven and new program integrity tools to prevent and identify waste, fraud, and abuse."

Follow Robert Lowes on Twitter @LowesRobert

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