June 01, 2019 Healthcare

EHR Enforcement: Providers in the Crosshairs?

Benjamin H. Wallfisch, Norton Rose Fulbright, Austin, TX and Washington, DC

In April, the ABA Health eSource published an article about recent federal enforcement actions against Electronic Health Records (EHR) vendors, highlighting recent high-profile False Claims Act (FCA) settlements involving software companies, including Greenway Health and eClinicalWorks.[1] The investigations stem from alleged violations related to the so-called “meaningful use” EHR incentive program, in which the Department of Health and Human Services (HHS) offers incentives to hospitals and physicians for the adoption and “meaningful use” of certified EHR technology. The theory underlying the recent FCA cases against EHR software vendors is that those companies sold EHR technology to providers that did not meet the stated criteria for the meaningful use program, and therefore the providers were paid incentives that they had not earned.  Under this theory, EHR vendors did not themselves submit false claims, but caused providers to file false claims for meaningful use incentives.  

Although much of the recent enforcement focus has been on EHR vendors, April’s eSource article noted that healthcare providers remain at risk if the EHR technology they use does not meet the requirements of the meaningful use incentive program.  In fact, in recent years whistleblowers have filed a handful of FCA cases targeting providers’ receipt of EHR incentive payments.  Those cases have had mixed success, but a case unsealed in March of this year serves as a reminder that providers may still be in the crosshairs.

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