EBG Is Victorious in Two Electronic Health Record Incentive Program Matters

May 1, 2014

In May 2014, Epstein Becker Green scored major victories in two matters relating to the Centers for Medicare & Medicaid Services ("CMS") Electronic Health Record ("EHR") Incentive Program, which provides incentive payments to eligible professionals, eligible hospitals, and critical access hospitals as they adopt, implement, upgrade, or demonstrate meaningful use of certified EHR technology.

In the first matter, Epstein Becker Green, on behalf of a hospital client, persuaded CMS to admit that it was possible to meet an EHR Incentive Program requirement in a way that was not clearly addressed in the program's rules. Specifically, the EHR Incentive Program requires the transmission of a "transition of care" document to a patient's new providers when a hospital refers or transfers the patient. Ideally, this document is sent electronically and directly to the provider. But, in certain circumstances, the EHR Incentive Program rules also allow the transition-of-care document to be provided to the patient to deliver to the next provider. Epstein Becker Green obtained a written response from CMS that Epstein Becker Green's hospital client is permitted, instead of printing this document and providing it physically to each patient, to post the document in the "patient portal"—a private website accessible by the patient that hosts copies of certain health care documents (and is itself another EHR Incentive Program requirement). This result greatly pleased our hospital client, since it was no longer required to print and hand out all of that paper.

In the second matter, Epstein Becker Green represented a small orthopedic group practice that was participating in the EHR Incentive Program, had received incentive payments, and was recently audited by one of CMS's outside auditing vendors. The audit determined that the group practice did not meet all of the "meaningful use" requirements under the EHR Incentive Program. Therefore, the group practice was ordered to refund its incentive payments, which totaled over $100,000. However, Epstein Becker Green, using its extensive knowledge of the EHR Incentive Program, was able to successfully appeal the audit determination, resulting in no recoupment by CMS of any of the payments.

The Epstein Becker Green attorney representing the hospital client and the group practice was Joshua J. Freemire.