Is fraud or regulatory complexity to blame for false MU claims?

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Some providers are suspected of illegally manipulating the Meaningful Use program by improperly claiming EHR incentives, according to a Sept. 24 letter from the Department of Health and Human Services and the Department of Justice (DOJ). But a response from the American Hospital Association (AHA) claims regulatory complexity and lack of leadership are to blame for indications for fraud.

“Used appropriately, EHRs have the potential to save money and save lives,” wrote HHS Secretary Kathleen Sebelius, MPA, and Attorney General Eric Holder, JD, in a letter addressed to five professional associations that was obtained by several news outlets, including the New York Times. “However, there are troubling indications some providers are using this technology to game the system, possibly to obtain payments to which they are not entitled.”

Some of the 55 percent of providers enrolled in the EHR incentive program may be duplicating patient information in records of separate care episodes and exaggerating the severity of patients’ conditions, according to the letter. The Centers for Medicare & Medicaid Services (CMS) will initiate more extensive medical reviews in response to the allegations of fraud. Law enforcement also is available to pursue offenders and the Patient Protection and Affordable Care Act enabled CMS to more thoroughly investigate and penalize providers committing fraud, the letter warned.

Prosecutions of fraud have increased in recent years, with 75 percent more occurring in 2011 than in 2008, noted the letter, which was specifically addressed to the American Hospital Association, the Association of Academic Health Centers, the National Association of Public Hospitals and Health Systems, the Federation of American Hospitals and the Association of American Medical Colleges. The DOJ and HHS committed to escalate these efforts “to prevent fraud and pursue it aggressively when it has occurred.”

AHA issued a same-day response stating support for compliance. “America’s hospitals take seriously their obligation to properly bill for the services they provide to Medicare and Medicaid beneficiaries,” read a letter to Sebelius and Holder authored by AHA President and CEO Richard Umbdenstock, MS. However, he noted that a multitude of audits and lack of national guidance from CMS may lead to a perception of fraud.

“It’s critically important to recognize that more accurate documentation and coding does not necessarily equate with fraud, Medicare and Medicaid payment rules are highly complex and the complexity is increasing. We have made numerous requests to CMS to develop national guidelines for the reporting of hospital emergency department (ED) and clinic visits.”

AHA has requested CMS implement national guidelines 11 times since 2001 and the American Health Information Management Association made that request in 2003, according to the letter, but CMS has since “instructed hospitals to develop internal hospital guidelines to determine the level of clinic or ED services provided,” according to Umbdenstock’s letter.

Compliance through multiple audits, with auditors including recovery audit contractors and Medicare administrative contractors, also complicates coding for providers. Auditing programs need to be streamlined to eliminate duplicative audits and investments should be made toward training for coders, according to the letter.

“What’s needed is clearer guidance from CMS, not duplicative audits that divert much needed resources from patient care,” Umbdenstock concluded.