Proliferation of RAC Meaningful Use Audits

In this case, more than 50 percent of the practice’s patients refuse to provide an email address or do not have one to provide.

Recently, I’ve seen a slew of meaningful use audits. Hospitals go through these audits all the time. It usually goes like this: a hospital purchases an expensive electronic health record (EHR) system, and since they all will be sharing the EHR, the physicians sign over their meaningful use incentive to the hospital. The hospital submits the information and number of physicians using the program, and the hospital receives an incentive of approximately $8,500 per physician.

A recent Recovery Audit Contractor (RAC) audit of a Georgia physician’s office ended up with a $34,000 alleged overpayment, based on four of nine physicians supposedly not meeting Objectives 8 and 9. This is a small case, only $34,000 and four doctors, but you can imagine how big meaningful use audits can be, if the entity is a large hospital.

Meaningful use requirements can be found at 42 C.F.R. § 495.2, et al. The purpose of the inventive program is to encourage Medicaid providers to “purchase, implement, and operate (including support services and training for staff) certified EHR technology.” 

Today, we are talking specifically about Objective 8. Objective 8 requires the provider to “provide patients the ability to view online, download, and transmit their health information within four business days of the information being available to the eligible provider.” 42 C.F.R. § 495.22. There are two measures within Objective 8:

Measure 1: More than 50 percent of all unique patients seen by the EP during the EHR reporting period are provided timely access to view online, download, and transmit to a third party their health information, subject to the EP’s discretion to withhold certain information.

Measure 2: In 2017 and 2018, more than 5 percent of unique patients seen by the EP during the EHR reporting period (or their authorized representatives) views, downloads, or transmits their health information to a third party during the EHR reporting period.

In this case, the RAC auditor claimed that we did not meet the criteria of Objective 8, Measures 1 and 2. No justification or support for this position was provided. We disagreed.

The client has an EHR system that allows for all patients who provide an email address to access, view, download and transmit health information. More than 50 percent of the practice’s patients refuse to provide an email address or do not have one to provide. Despite the auditor being aware of this issue, they continued to give the practice the runaround with numbers and calculations. The RAC auditor ignored explanations from Dr. Miniyar and MacPractice – almost as if they had their mind made up to recoup these funds.

We are appealing, and are confident that we will not have to pay back any money.

Programming Note: Listen to Knicole Emanuel’s live reports every Monday on Monitor Mondays, 10 a.m. Eastern.

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Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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