Sore point: Allegations of fraud in the Electronic Health Records market
Since 2017, three EHR vendors have paid more than $357 million combined to settle government claims related to fraud, kickbacks and other alleged abuses.
Some of the alleged abuses involve cheating on the tests the federal government uses to certify EHR programs as meeting the requirements of federal law. Greenway Health, a Tampa-based EHR vendor with more than 6,000 customers, paid $57.25 million last year to resolve allegations — without admitting wrongdoing — that it cheated on the federal certification tests for the 2014 edition of its Prime Suite software and failed to correct calculation errors in a 2011 version of the software that caused some doctors to claim federal incentive payments to which they weren’t entitled.
The government’s complaint cites instant messages between Greenway employees in which they discuss keeping a flawed formula in the software intact so that doctors would still be able to qualify for “meaningful use” incentives. The formula in question required doctors to show that they provided after-visit summaries of patients’ visits for more than 50% of all office visits — but the Prime Suite software calculated the summaries as a percentage of unique patient visits, not every patient encounter. Correcting the mistake, the complaint said, would have made 800 of its doctor customers ineligible for the government subsidies.
“I think the fix is easy enough … but where it gets messy is that we need to relay to our customers and they will not be happy,” Kevin Kornegay, a Greenway business analyst, allegedly told a colleague in an April 2012 electronic message cited in the complaint.
Months later, Kornegay and the coworker, a product manager named Jared Howerton, appeared to struggle over whether to correct the error: “I didn’t sleep well last night thinking about it. ... But I don’t want to get fired,” the business analyst wrote. “That settles it,” his colleague responded. “You can’t sleep, there is something wrong, but then after we make the change, we won’t be able to sleep either ... the good news is ... it isn’t like it affects health (sic) it just affects $$$.”
Greenway officials opted not to make the fix until it issued a mid-2013 software upgrade, the government alleged, and the company continued to allow customers to use the original flawed formula if they requested it.
The complaint also alleged that Greenway Health violated the federal Anti-Kickback Statute by making illegal payments to customers in exchange for recommending its EHR product to others. It said Greenway doled out approximately $756,855 in “referral and reference payments” between 2011 and 2017 and “lavished gifts” such as iPads, meals, trips and sports tickets on its “most favored customers.”
Greenway Health has denied the allegations. In a statement, the company said the settlement was “not an admission of wrongdoing” and said their Prime Suite software “has been and continues to be ONC-certified — both then and now.”
As part of its settlement, Greenway signed a five-year “corporate integrity agreement” with the Department of Health and Human Services Office of Inspector General. The agreement requires Greenway to retain an independent review organization to assess its software’s “quality control and compliance systems” and review its arrangements with health care providers to ensure they comply with the anti-kickback statute. The company must also notify customers of patient safety-related issues and provide Prime Suite users upgraded versions of the software at no additional charge or allow them to transfer their data to another EHR software vendor at no charge.
Four Greenway customers have filed a class-action suit against the company in U.S. District Court in Georgia. The plaintiffs — a group of lung specialists in West Virginia, a neurology practice in Missouri, a Georgia pediatric group and an Arkansas family practitioner — allege that “Greenway’s misconduct” forced them to spend dozens of hours “trying to resolve the many errors with Prime Suite” and deprived “thousands of Prime Suite users” of the ability to apply for thousands of dollars in incentive payments for 2018.
Greenway, which filed a motion for dismissal, says it does not comment on pending litigation.
Remedies
Aggressive enforcement and fines may help clean up the industry. Following its settlement with eClinicalWorks, the Department of Health and Human Service Office of Inspector General warned EHR vendors and others that it was cracking down on fraud. “We’re entering an entirely new era of health care fraud,” John O’Brien, OIG’s senior counsel, said in a 2017 video statement. “The message OIG wants to send to the health care community is that we take the certification process for EHR software very seriously. There is no room for manipulating this process and making false statements during the certification process. OIG will vigilantly along with its law enforcement partner investigate any conduct that places patient safety at risk and that causes losses to the federal health care program.”
EHR-Related Settlements
eClinicalWorks (May 2017)
The Massachusetts EHR vendor and three of its founders paid $155 million to settle allegations that it misrepresented the capabilities of its software, in part by cheating on national certification tests, and paid kickbacks to physicians to promote its products.
Practice Fusion (January 2020)
The Silicon Valley vendor (acquired in 2018 by Allscripts) paid $145 million to resolve civil and criminal charges that it solicited and received $1 million in kickbacks from an opioid manufacturer in exchange for creating prompts in its EHR software that encouraged doctors to prescribe the addictive pain medication. The company, which made a name for itself by offering free software to doctors, admitted to participating in the scheme as part of its “criminal resolution.”
Inform Diagnostics (January 2019)
The Texas-based pathology lab, formerly known as Miraca Life Sciences, paid $63.5 million to settle allegations (triggered by three whistleblower lawsuits) that it provided kickbacks to referring physicians by providing them with free or discounted EHR consulting services.
A 2016 complaint filed by the federal government and more than a dozen states, including Florida, alleged that Miraca engaged in a scheme using EHR software made by Boca Raton-based Modernizing Medicine to induce dermatologists to use Miraca’s pathology services. According to the complaint, Modernizing Medicine’s software provided “enhanced” features to doctors who used Miraca as their lab but did not make those features available if the providers used other laboratories.
Miraca also deployed employees nationwide to train doctors on Modernizing Medicine’s EHR software, “EMA,” and paid Modernizing Medicine a “per-click fee for each lab ordered via EMA,” according to the complaint. Miraca’s “dermatopathology” caseload grew to 650,000 in 2015 — a 32% growth over the prior year, according to the government.
Modernizing Medicine, which was originally named as a defendant in the case but was later dropped, declined to comment on the matter.
Read more in Florida Trend's April issue.
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