Meaningful Use attesters: Beware the False Claims Act

We know what the drill is when providers attesting to Meaningful Use are later audited to see if they really were entitled to their incentive payments. If auditor Figliozzi and Company determines that the provider did not meet the attestation requirements, the provider will receive a letter directing it to return the "overpayment" to the government within 30 days to avoid having to also pay interest. If the debt still is not paid within 60 days, the debt is referred to the U.S. Department of the Treasury for possible offset.  A number of people who have dealt with these audits have shared the details of the letters used; the Centers for Medicare & Medicaid Services even provides some information on its website.

But what happens when a provider attests that it has meaningfully used its electronic health record, receives its incentive payment, and later discovers on its own that the attestation was faulty? Perhaps it learns that it miscalculated the numbers, or that staff never conducted an adequate risk analysis required by core objective 15. What should the provider do then?  What are the provider's obligations?

The HITECH Act and the Stage 2 regulations do not address this issue, although CMS does state in the regulations that it believes that attestations are subject to the False Claims Act. This issue is particularly sticky because Meaningful Use is an "all or nothing" deal; if one component of the attestation is faulty, the provider must return all of the money. No partial credit. 

So is a provider obligated to return the money within the timeframes and in the manner set forth in the Meaningful Use Incentive Program, sending a check to the EHR HITECH Incentive Payment Center in Chicago within 30 days of discovering the problem? Or, if it is an "overpayment," does a provider return it to its Medicare Administrative Contractor on the theory that it's an "overpayment" of a "claim?"

The Affordable Care Act is clear that that "overpayments" must be returned within 60 days of being identified; providers that fail to do so are in violation of the False Claims Act. Interestingly, the sample overpayment request letters I've seen from Figliozzi don't warn providers that failure to return the incentive payment may invoke the False Claims Act.

The False Claims Act is not to be taken lightly. Penalties range from $5,500 to $11,000 per claim, and are subject to treble damages. The U.S. Department of Health & Human Services has recovered millions of dollars from providers by using the False Claims Act. Moreover, it allows individuals to become whistleblowers and bring their own action against a provider, receiving a percentage of the amounts recouped. This leave providers particularly vulnerable.

We already know that improper billing by EHR users is on the government's radar. I would not be surprised if the government also starts using the False Claims Act to go after improper attestation.

But before HHS starts doing so, I hope that it provides a little more guidance, so attesters know what's expected of them. - Marla (@MarlaHirsch)