Advertisement

July 22, 2014

Centers for Medicare & Medicaid Services (CMS) Focuses on Fraud Associated with Increased Use of Electronic Health Records

Acting CMS Administrator, Marilyn Tavenner, recently reaffirmed the agency’s concern that the increased use of electronic health records (“EHRs”) has contributed to increases in fraudulent billing practices by providers. At a March 5th meeting of the Federation of American Hospitals (“FAH”), Tavenner noted an increase in upcoding from physician offices and hospital emergency departments, and expressed concern that the increased use of EHR systems may be the cause. She reiterated that CMS will conduct audits of providers’ billing practices using EHR systems. These “small, targeted audits” will take place in parallel with the meaningful use audit program that started in July 2012 and which is designed to determine whether providers are properly receiving meaningful use incentive payments and complying with program rules. On March 6th, Tavenner also spoke before the Healthcare Information and Management Systems Society Annual Conference and announced a CMS summit in May with providers and EHR vendors to further discuss and address potential upcoding in connection with the use of EHRs.

These upcoding concerns were first prominently expressed in a September 24, 2012 joint letter by Department of Health and Human Services secretary Kathleen Sebelius and Attorney General Eric Holder to five national trade associations, including the American Hospital Association (“AHA”), FAH, and the Association of American Colleges (“AAMC”). The letter recognized that Congress intended the meaningful use incentive payment program to be a mechanism to encourage the adoption of EHR technology, but alleged that “some providers are using this technology to game the system possibly to obtain payments to which they are not entitled.” Sebelius and Holder specifically identified the common EHR practice of copying previous clinical entries (“cloning” in the eyes of the government) onto a current record as a method that has the potential “to inflate” amounts claimed. AHA and AAMC responded to these allegations. Among other things, they requested greater coding guidance from the government, and noted that there are clinical reasons for utilizing the “copy functionality,” despite the known compliance challenges.

The meaningful use program was originally conceived as a centerpiece of health care reform because the program encourages EHR adoption, holds the promise to lower costs, and requires providers to change clinical practices as a condition of receiving the incentive payments. Recent data and a May 2012 OIG Report, however, show significant increases in Medicare payments due to changes in evaluation and management coding practices, which suggest that EHR adoption may unintentionally increase costs, likely driven not by fraud but by more accurate coding practices. Nevertheless, the September 2012 HHS/DOJ letter, together with the dual CMS audits on meaningful use compliance and upcoding practices, are reminders of the potential fraud and abuse risks associated with knowingly submitting inaccurate meaningful use attestations and claims for services that are not properly documented.

©1994-2014 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

About the Author

Thomas Crane, Health Care Attorney, Mintz Leving Law Firm
Member

Tom is nationally recognized for his experience with fraud and abuse. Practicing in Boston and Washington, DC, he advises national and local clients on structuring complex strategic affiliation arrangements and transactions to comply with the applicable fraud and abuse laws as well as the variety of other regulatory requirements to meet today’s health reform challenges. His work in defending clients against anti-kickback, Stark Law, false claims, and whistleblower allegations includes litigation, internal investigations, voluntary disclosures, and negotiating settlements and...

617-348-1676

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.