The Black Box: The Appeal of a Failed Meaningful Use Incentive Audit
Appealing a failed Meaningful Use incentive audit? Don’t expect transparency.
Whether you are an Eligible Hospital (EH) or Eligible Professional (EP) receiving a “negative determination” at the conclusion of a Meaningful Use incentive audit can definitely raise your anxiety level. A pre-payment audit failed is bad enough but a post-payment failure can lead to sleepless nights. The Federal Government is telling you that they want that incentive back. 100% of it for the year your MU attestation was audited. In the case of EHs this usually runs well over $1,000,000. Any way you look at it that is a lot of bitcoins.
The Meaningful Use incentive audit process is well documented. Guidance, clarification, and advice are available from CMS, vendors, bloggers, and all the rest of the usual suspects, including yours truly. During an audit you are in direct communication with an actual human who lets you know their expectations in terms of documentation. There is opportunity to ask for and receive clarification. You are aware of deadlines and when more information is required.
This level of transparency is not the case during an appeal of a failed MU audit. If you receive notification that you have failed, you will receive instructions of your rights to appeal. Now you will be entering the world of the “black box”.
Wikipedia tells us that: “a black box is a device, system or object which can be viewed in terms of its input………output and without any knowledge of its internal workings.” Your appeal documentation is the input and the final decision is the output. What happened in the black box can only be guessed at.
The Meaningful Use incentive Appeal Request Forms for both EPs and EHs inform us: “All documentation is required at the time of submission and additional documentation will not be accepted”. Additional delivery guidance states: “Electronic submission of this request is strongly recommended. This completed request and all supporting documentation must be attached to an email and sent to email@example.com.” In the appeals I have submitted for numerous EHs and EPs there is a confirmation email that comes back immediately. Then the silence begins. In the very early days of the MU appeals process a conference call would be arranged by the a member of the appeals staff in which my client and I would be given an opportunity to provide clarifying explanation in support of our appeal. It appears that is no longer an option. In the numerous MU appeals I have authored and submitted on the behalf of EHs and EPs in the past six months there has been no such opportunity for dialogue.
Something else had changed recently in terms of recoupment penalties. The “First and Final Request for Repayment” follows notification of a failed audit. This document says something along the lines of: “If you do not refund in full within 30 days…simple interest…will be charged on the unpaid balance of the overpayment beginning of the 31st day. If you debt reached 61 days delinquent your debt will be referred to the Department of Treasury’s Debt Collection Center…”
An EH or EP that is appealing a failed audit usually has a big decision to make as to whether the incentive should be paid back pending the outcome of the appeal. I have been told by both the CMS EHR Information Center and CMS audit staff that interest on the recoupment amount would accrue during the appeal process and would be due even if the appeal caused the failed audit to be reversed. Now CMS is stating: “When submitting a Failed Audit Meaningful Use Appeal, hospitals may choose to delay repayment of the Medicare EHR Incentive Payment as described in correspondence received from the EHR HITECH Incentive Payment Center. However, if the appeal is denied, failing to return the incentive payment as instructed may result in additional interest payments owed.”
I have found the folks at the EHR Information Center and the personnel directly involved with the MU audit appeals incredibly helpful within the scope of their responsibility. I have been invited to provide feedback on the appeal process and how it could it be made smoother. I cannot even imagine how many MU appeals are in the pipeline. I’m guessing there is an overwhelming number and the process is being tweaked to provide efficiencies for all involved. One thing that is obvious is that if a Meaningful Use incentive audit is failed, and you submit an appeal, your destiny is even less in your hands.
I will be at the HIMSS14 Annual Conference in Orlando in a few weeks. You can bet I’ll be checking for information on MU audits and trying to take a peek into the black box of the MU appeals. If you are headed to HIMSS14 and want to make contact, give me a shout at firstname.lastname@example.org.