Contract issues could spell trouble during MU audits

Physicians and hospitals are facing difficulties during Meaningful Use audits because of unanticipated contract issues related to physicians' assignment of incentive payments to employers, according to attorney Matthew Fisher, of Mirick, O'Connell, DeMallie & Lougee in Worcester, Massachusetts. 

"You need to think ahead regarding what access and information you may need [regarding Meaningful Use attestation and auditing]. Try to prevent problems," Fisher warned during a recent webinar hosted by HITECH Answers.

The Centers for Medicare & Medicaid Services specifically stated in the Meaningful Use regulations that assignment of incentive payments by physicians to their employers was a contractual issue that the agency was not going to get involved with, according to Jim Tate, president of Ashville, North Carolina-based EMR Advocate, who also spoke during the webinar. 

Unfortunately, physicians and hospitals now being audited are running into trouble because of the language addressing assignments, according to Tate and Fisher. Some of the problems cropping up include:

  • If an employee physician assigned his or her incentive payment to the employer, the incentive payment remains in the name of the physician. But if the physician leaves that place of employment, and the former employer fails a Meaningful Use audit and must return the incentive payment, the employer isn't automatically responsible for recoupment of that payment if it's not spelled out in the contract.
  • If a physician leaves employment, it may not be clear whether he/she is entitled to attestation information created while on the job which he/she may need in order to attest in the new practice setting.
  • Some contracts don't delineate who is responsible for documenting compliance with the objectives. This can come back to haunt an audited physician who believed that the hospital was in charge of this task and doing it well.

Providers may wish to revisit their contracts to ensure that their incentive assignment provisions are adequate, and to consider such concerns as soon as the relationship between a physician and employer changes, Fisher said.

"If you wait, you may not have time or the ability to deal with [any problems] when you finally get audited," he warned.    

Meaningful Use audits began in 2012. Some providers are failing them because of documentation errors, failure to meet objectives and other reasons. Appealing a negative determination has proven to be difficult, in large part because CMS has provided few guidelines regarding appeals.

To learn more:
- listen to the webinar

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