Attorney: Providers can skip a year of MU attestation

The Centers for Medicare & Medicaid Services has published inconsistent information about how often providers need to demonstrate Meaningful Use, which may be confusing many providers about whether they must successfully attest every year in order to participate in the program, according to attorney Kathie McClure, with Wyatt, Tarrant & Combs in Louisville, Ky.

In a Jan. 28 blog post, McClure points out that CMS' official website about the Meaningful Use incentive program states that "Providers must demonstrate Meaningful Use every year to receive incentive payments." However, she says, two of CMS' recent answers to frequently asked questions clarify that this is not the case. FAQ 9220, published November 2013, specifically says that:

"If a participating provider does not successfully attest for a given year, he/she will not be eligible to receive an incentive payment for that year. However, attesting and receiving an incentive payment for a future participation year is based on the provider's ability to meet MU during that year and not based on success or failure in previous years."

The FAQ also states, as McClure points out, that an eligible provider "that participates in the Medicare [electronic health record] Incentive Program and does not meet MU for one participation year is highly encouraged to continue to attest and earn incentive payments for future participation years."

McClure notes that this position is consistent with FAQ 7737, which addresses participation in the Medicaid incentive program, as well as the preamble to the Meaningful Use Stage 1 regulations. She warns, though, that should a provider decide to give themself a break from Stage 2 implementation this year, they'll "be lessening the total EHR incentive payments available over the long haul under HITECH."

This pseudo reprieve may be welcome news for providers in 2014, who also are dealing with the transition to ICD-10, health reform, and other developments, McClure says. Many providers have been struggling with Meaningful Use attestation, with uneven success throughout the country.

To learn more:
- read the blog post
- view CMS' incentive program website

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