Annals of Health Law
READY OR NOT
2. Fraud Issues in Provider Attestations of VBP Data
Currently, CMS accepts two methods of quality data reporting for
Hospital VBP. In 2011, CMS only accepted quality data for Hospital VBP
through an attestation method. 165 In 2012, providers could have continued
to use CMS’ attestation tool, or those who had met the requisite level of
EHR sophistication could have elected to submit quality data electronically
through the EHR Electronic Reporting Pilot. 166 This section explores how
and why providers choosing to use CMS’ attestation tool risk additional
fraud vulnerability compared to providers choosing to participate in the
electronic reporting program. While all providers are subject to false claims
liability under the FCA for submitting false or inaccurate performance data
upon which reimbursements are based, the attesting providers risk liability
under the FCA pursuant to a separate and additional false claims basis for
the false attestation itself. 167
165. See Registration & Attestation, CENTERS FOR MEDICARE & MEDICAID SERVICES,
http://www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/ RegistrationandAttestation.html (providing
more information regarding the attestation method for submitting quality data). This is the
same tool used for attestation in connection with the EHR Incentive Program. Id.
166. Eligible hospitals and Critical Access Hospitals (as defined under the EHR
Incentive Program) may report through the Hospital IQR in order to participate in the
electronic reporting option to submit their quality data to be eligible for an incentive
payment. Information regarding this process can be found at Electronic Health Record
(EHR) Incentive 2012 Reporting Pilot Program Overview, QUALITYNET, http://
cid=1228771190900 [hereinafter Reporting Pilot Program Overview].
167. See Schindler, supra note 133, at 394 (discussing false certification claims as
separate and distinct from underlying billing fraud claims); see also Max Kennerly,
Electronic Health Records Fraud, The New Frontier In False Claims, LITIGATION AND TRIAL
BLOG (May 19, 2011), available at http://www.litigationandtrial.com/2011/05/
articles/attorney/whistleblower/electronic-health-records-fraud-the-new-frontier-in-false-claims/. In the legal context, an attestation is a confirmation that something is true, genuine,
or authentic. See Attestation: Definition, LEGAL INFORMATION INSTITUTE (Aug. 19, 2010),
available at http://www.law.cornell.edu/wex/attestation.
168. See Registration & Attestation, supra note 165.
169. See id.
170. See id. CMS explains that “In the Registration and Attestation System, providers
will fill in numerators and denominators for the meaningful use objectives and clinical
quality measures, indicate if they qualify for exclusions to specific objectives, and legally