In May of 2017, H&F, PLLC attorney Hieu Huynh issued a healthcare compliance alert regarding the electronic health records (EHR) meaningful use incentive payment program.  The Texas Medicaid Electronic Health Record Incentive Program, which began in 2009, provides financial incentives to providers who convert to, and show meaningful use of, certified EHR technology.  One of the requirements of the program involves that, every year, providers attest to meeting certain meaningful use requirements in order to receive an incentive payment.

Unfortunately, third-party consulting companies that took advantage of provider’s claiming to be able to handle all of the “paper work” for providers, have closed up shop and left the provider’s in the dark. CMS is currently auditing providers associated with some third-party providers. All programs involving government funds, including the meaningful use incentive program carries with it a risk of civil, or even criminal, liability.  As to the latter, in February 2014, a Texas hospital CFO was indicted by a federal grand jury and charged with healthcare fraud by making false statements to CMS over meeting EHR meaningful use requirements. The indictment alleged that the CFO falsely attested to CMS that the hospital met meaningful use requirements.  In announcing the indictment, the Department of Health and Human Services’ Office of the Inspector General (OIG) stated that meaningful use fraud was “an area of continuing interest” to the OIG.

Even where questionable meaningful use attestation does not rise to the level of criminal fraud, however, there remains a risk of civil liability under the False Claims Act (FCA).  The FCA imposes treble damages and substantial per-claim penalties on anyone who, among other things, knowingly presents, or causes to be presented, a false or fraudulent claim for payment, or knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.  This could potentially include provider attestation for EHR incentive payments that contain misleading or inaccurate information.  Here, it is important to remember that “knowingly” under the FCA includes reckless disregard and deliberate ignorance, and does not require a specific intent to defraud.

H&F, PLLC represents healthcare providers in connection with CMS audits and audit appeals.  For more information, please contact attorney Hieu Huynh at (800)721-3859.