I'm sure I'm not the only person who's distressed to learn that the appeals process for the Meaningful Use program lacks clarity and appears arbitrary.
So what's going on here? It's not that easy to find out.
For one, CMS gave itself a pass when it created the Meaningful Use audit appeals process in its 2012 rule finalizing Stage 2, declining to clarify how the process would work:
"We believe the administrative review process is primarily procedural and does not need to be specified in regulation. The appeals process we proposed essentially constituted an agency reconsideration of certain types of determinations regarding eligibility for the program, Meaningful Use, or incentive payment amounts. We believe such an informal reconsideration process may be included in procedural guidance, rather than in our regulations. Therefore, our administrative appeals process will be included on our Web site."
The problem is that there is scant guidance for the appeals process. In all of the Frequently Asked Questions, I could find only one line about it, buried in the audits, and it provided no help whatsoever:
"CMS has an appeals process for eligible professionals, eligible hospitals, and critical access hospitals that participate in the Medicare EHR Incentive Program," the line reads.
Okay, but what is that appeals process?
The website has information about the Meaningful Use audits, including sample request letters and an FAQ explaining that Garden City, New York based Figliozzi and Company will be conducting them.
But I could not find corresponding information about the Meaningful Use audit appeals--no sample letters, no indication of how long it takes to receive a response once filing an appeal, no guidance regarding next steps if the appeal is denied. The website doesn't even identify the contractor handling the appeals, which is Erie, Pennsylvania-based Provider-Resources. To figure that out, you have to look closely at the email address to which appeals are sent.
The appeals submission forms themselves don't shed more light on the appeals process, although the forms do warn providers that they may not work with all computers because they're "dynamic," and that it's "mandatory" pursuant to section 6402 of the Affordable Care Act to tell CMS if the provider believes it has been overpaid--without explaining why.
Now, I do know that the HITECH Act imposed some limits on administrative and judicial review of the Meaningful Use program. But it didn't require providers to be kept in the dark regarding how the appeals process works. They're entitled to know.
And they should be able to rely on the fact that the process will be fair, consistent and reasonable.
Instead, some appeals have been "lost." At least one MU audit appeal I'm aware of was denied with no explanation. How does a provider correct a problem without knowing what the appeals reviewer found wrong?
And what about the poor practice that won its appeal in March, only to hear in May that the appeal was "reopened" and reversed, with no further right to appeal? On what grounds can CMS do that? Did it want a do-over? And do providers have any inkling that an appeal can be snatched away without notice? According to Jim Tate, President of EMR Advocate, the only recourse after losing on appeal is suing CMS in federal court, an expensive and time consuming option. But I'll bet most providers don't even know that option exists, and CMS isn't telling them.
Does this mean that every provider who wins a Meaningful Use audit appeal must sit on the incentive payment to make sure that mercurial CMS doesn't change its mind? And if so, for how long?
Providers who are denied payments during a Recovery Audit Contractor audit can utilize a clearly delineated five step administrative appeals process--and the last step is the right to go to federal court. It's not perfect, but at least providers know how it's supposed to work.