The U.S. Department of Justice (DOJ) continues to use all of its legal tools to address fraud in the electronic health record (EHR) industry. In the February 2021 edition of The Health Lawyer, this author described concerted efforts over the past five years by the DOJ and the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS) to uncover and address unlawful and fraudulent activities by four major players in the industry. As of January 28, 2021, the number is now five.
Athenahealth, Inc., a privately held corporation based in Watertown, Massachusetts, agreed to pay $18.25 million to settle a complaint-in-intervention filed by the DOJ for violations of the False Claims Act and Anti-Kickback Statute by paying unlawful kickbacks to generate sales of athenaClinicals, its EHR product. The complaint filed in the District of Massachusetts described three illegal programs: (1) a “Concierge Event” program that provided current and potential clients’ executives, physicians, and decision-makers with all-expense-paid trips to events such as the Kentucky Derby, Masters Golf Tournament, Indy 500, New York Fashion Week, and other football, basketball, and baseball games to induce the purchase of Athena’s clinical software; (2) a “Client Lead Generation” program which paid existing clients up to $3,000 per physician for referrals of potential clients; and (3) a “Conversion Deal” program with competing EHR vendors who were discontinuing their products for recommendations to Athena’s EHR platform. The settlement resolves two separate qui tam lawsuits in which the government intervened; two of the original three plaintiffs were chief executive officers of two Arizona-based home health agencies. The Settlement Agreement covers the terms of the payment but does not require further obligations of the software vendor.
In another EHR fraud case, former Practice Fusion sales executive Steven Mack pled guilty on March 8, 2021 of attempting to obstruct the federal investigation of the relationship between the software company and Purdue Pharma LLP, the seller of OxyContin. Practice Fusion sought and Purdue Pharma paid nearly $1 million to implement a clinical decision support alert in Practice Fusion’s EHR software to prompt physicians to prescribe more extended-release opioids. Mack, who was the former director of National Accounts, admitted deleting hundreds of computer files relevant to the investigation. He became the fourth individual to be held personally accountable in federal EHR fraud investigations, joining three eClinicalWorks executives in 2017 in the first and largest of these government actions.
These ongoing developments suggest that federal government law enforcement sees fraud and abuse in the lightly regulated EHR industry as a potential threat to federal healthcare financing programs and ultimately a potential risk to patients and the public. The EHR fraud cases also demonstrate the use of whistleblowers whose inside knowledge can raise flags on potential illegal activity and bring on the weight of the government’s investigatory and settlement powers to seek changes in the industry.
