Annals of Health Law
READY OR NOT
P4P programs already underway or in various stages of development across
provider setting types. 82 These initiatives, pilots and programs are moving
decidedly toward mandatory and permanent integration into a Medicare
reimbursement model, which will further expand the universe of data
available to the OIG and its partners to identify, investigate and prosecute
instances of fraud. VBP calls for the submission of vast scores of quality
data used in the calculation of performance records for up to 3,500 hospitals
starting in 2012.83 Moreover, quality data is multiplying exponentially
alongside a parallel data explosion as providers across the nation are
adopting electronic health records (“EHR”). 84 EHR provides the foundation
for the universe of electronic health data comprised of patient records and
billing and claim-based information, and is expanding constantly as
providers are increasingly joining the ranks of EHR “meaningful use”
participants. 85
Not surprisingly, clinical quality data is increasingly a focal point of OIG
interest, as evidenced by the OIG 2012 Work Plan. 86 The Plan announced
investigative and legal agendas that include aggressive use of the FCA to
ferret out and prosecute healthcare fraud. 87 Although the Plan includes
82. See An Introduction to Value-Driven Reform, supra Section I.
83. See HEALTHCARE.GOV, supra note 17.
84. Per CMS, an electronic health record (EHR) is “an electronic version of a patient’s
medical history that is maintained by the provider over time, and may include all of the key
administrative clinical data relevant to that person’s care under a particular provider,
including demographics, progress notes, problems, medications, vital signs, past medical
history, immunizations, laboratory data and radiology reports.” See Electronic Health
Records, CENTERS FOR MEDICARE & MEDICAID SERVICES, http://www.cms.gov/Medicare/E-Health/EHealthRecords/ index.html?redirect=/EHealthRecords/. Further, “[t]he EHR
automates access to information and has the potential to streamline the clinician’s
workflow. . .and support other care-related activities directly or indirectly through various
interfaces, including evidence-based decision support, quality management, and outcomes
reporting.” See id.
85. See generally EHR Incentive Programs, CENTERS FOR MEDICARE & MEDICAID
SERVICES, available at https://www.cms.gov/Regulations-and-Guidance/Legislation/
EHRIncentivePrograms/ index.html?redirect=/EHRIncentivePrograms/.
86. DEPT. OF HEALTH AND HUMAN SERVS., OFFICE OF INSPECTOR GEN., 2012 WORK PLAN
[hereinafter 2012 WORK PLAN], available at https://oig.hhs.gov/reports-and-
publications/archives/workplan/2012/Work-Plan-2012.pdf.
87. See id. at Part IV- 1-2, “Legal and Investigative Activities Related to Medicare and
Medicaid.” “When adequate evidence of violations exists, OIG staff members work closely
with prosecutors from the Department of Justice (DOJ) to develop and pursue Federal false
claims cases against individuals and entities that defraud the Government. Authorities
relevant to this work come from the False Claims Amendments Act of 1986 and the Fraud
Enforcement and Recovery Act of 2009. We assist DOJ prosecutors in litigation and
settlement negotiations arising from these cases.” OIG and its partners investigate
individuals, facilities, or entities that, for example, bill or are alleged to have billed Medicare
and/or Medicaid for services not rendered, claims that manipulate payment codes to inflate
reimbursement amounts, and false claims submitted to obtain program funds. Id.
