Fraud and Abuse: Electronic Health Records

The implementation and use of Electronic Health Records (EHR) has transformed the healthcare industry, and allowed more effective care of patients through communication between and among health care professionals, and data analysis. Tremendous efficiencies have been achieved, with resulting cost savings. Providers have reaped financial benefits, including payments under government incentive programs.

One such form of incentive it to submit a Certificate of Meaningful Use, which is using certified EHR technology to:

• Improve quality, safety, efficiency, and reduce health disparities
• Engage patients and families in their health care
• Improve care coordination
• Improve population and public health
• All the while maintaining privacy and security

Over the past several years there have been required stages of compliance with Meaningful Use Criteria; Stage 3 compliance is being required for 2019 forward. (CMS Guidance regarding EHR Meaningful Use).

However, recent cases have resulted in significant settlements against providers and EHR vendors who have certified Meaningful Use, without actually meeting the applicable requirements:

1) In Kansas, Coffey Health System paid $250,000 to settle allegations that it wrongfully submitted EHR Incentive Program claims under the False Claims Act. The government’s investigation was triggered by qui tam allegations made by two former executive employees, who will share in the government’s monetary recovery.

2) EHR vendor eClinicalWorks paid $155 million to settle a qui tam action involving allegations of failing to comply with the “meaningful use” certification test, and failing to update the software and fix bugs identified in the system.

3) Another EHR vendor, Greenway Health, allegedly manipulated its software in order to falsely claim that use of the software would allow its customers to qualify for Meaningful Use incentive payments; users of Greenway software falsely certified that they were eligible. Greenway has been ordered to provide remedies in the form of offering its customers updated software at no charge, and giving the customers the option of transferring data to another EHR provider, or to an alternative Greenway software product, without service charges or other fees to the customer.

Both Greenway and eClinicalWorks were required to agree to Corporate Integrity Agreements (CIA), which require the companies to fully comply with Meaningful Use certification requirements going forward, in addition to requiring an independent evaluation of software quality control. CIAs may be imposed as a remedy against individual providers as well.
Before there is an audit, providers with doubts or questions regarding Meaningful Use compliance will want to consider reviewing the EHR certifications they have submitted, gathering and retaining the related documentation, and compiling proof of compliance with all applicable requirements.

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