The Assignment of Meaningful Use Incentives
It sounds fairly simple and straight forward. Medicaid and Medicare eligible professionals (EP) who have achieved and attested to meaningful use (MU) can assign their incentive payment to another entity. CMS lays it right out there “However, under Medicare, eligible professionals (EPs) may choose to assign their incentive payments to their employer or entity with which the EP has a contractual arrangement. Under Medicaid, EPs also can choose to assign their meaningful use incentive payments to their employer or to other state-designated entities.” What could be easier to understand? If a hospital or large practice employs an EP, the employment agreement could spell out whether the meaningful use incentive goes to the EP or is assigned. CMS steers clear of most of the details and views the assignment process as a “contractual issue between employer and employee”.
CMS FAQ: “Can my employer require me to assign my meaningful use incentive to them?”
CMS Response: “No. Eligible Professionals (EPs) may voluntarily assign their incentive payment to their employer. This is likely to be most common in environments where the employer paid for most or all of the certified EHR technology. The Centers for Medicare and Medicaid Services (CMS) views the assignment process as primarily a contractual issue between employer and employee.”
In the past week I have been contacted by three providers struggling with issues related to assignment. The details in the scenarios below are real and outline troublesome areas in which there are no easy answers, as least for me.
Scenario 1: The hospital bought a large specialty practice that had been achieving MU and receiving incentives for several years. All incentives were assigned to the practice. After the buyout, the hospital installed a new EHR and during the transition most attestation records were discarded. Now one of the EPs has failed an audit for a year prior to the hospital acquisition. Since the incentive was assigned to an entity that no longer exists, who is responsible for the incentive recoupment?
Scenario 2: A hospital hires a physician from a private practice who has completed the first portion of their MU reporting period but will complete that period as an EP at the hospital. What are the issues involved with obtaining the MU data from the prior entity? What if the prior practice will not provide the MU data needed for attestation? How could this have been prevented?
Scenario 3: An EP works for a hospital and the hospital staff handles the attestation by proxy and the incentive is assigned to the hospital. The EP retires and several years later the hospital receives an audit engagement letter for the EP. Does the hospital have any responsibility? If meaningful use incentives are recouped do they come from the EP or to the assignee who received the incentive?
The murkiness of these issues go beyond the reach of MU regulations and into the realm of contract law and who knows what else. Brave men and women turn back at this point so I think it is time to invite a lawyer to join us at the table. We need wise counsel and we need it now from someone deep in the trenches of health law. Thank goodness the call has been answered by Matt Fisher, an attorney focused on health law who happens to be the chair of the American Bar Association’s Health Law Section’s Web and Technology Committee.
Matt and I will be co-presenting a webinar Thursday, Jan 15, 2015 at 2 pm ET entitled Meaningful Use: Attestation, Assignments and Appeals – A Legal Perspective. We will make sure there will be ample time for Q/A as we explore Best Practices and Lessons Learned relative to some of the more often misunderstood MU issues. Register here and don’t forget to bring your questions.