In the aftermath of the eClinicalWorks settlement, some have wondered whether providers are at risk for subsequent litigation for accepting EHR incentive payments for software that failed to meet certification criteria.
It was a question that struck Joshua Freemire, a healthcare and life sciences attorney with Epstein Becker Green in Baltimore, Maryland. Although federal prosecutors clearly pinned the allegations on the software vendor, theoretically, he said, nothing is stopping the prosecutors from going after providers since they received the actual EHR incentive payments from the federal government.
Last year, the Department of Health and Human Services Office of Inspector General said it will closely review potentially improper EHR incentive payments.
“There are a lot of providers out there that used eClincalWorks to attest,” Freemire told FierceHealthcare.
However, it’s unlikely the Department of Justice will pursue providers in the fallout of this case, said Jodi Daniel, a partner at Crowell & Moring, a law firm in the District of Columbia. Daniel is also the former policy director at the Office of the National Coordinator for Health IT (ONC).
Although the question had been raised to her, she predicted there would be “little if any chance” of subsequent legal action against providers, in part because the federal government already recouped false claims from the vendor.
“They were trying to address what they saw as an improper action,” she told FierceHealthcare. “I would be shocked if the government went after a provider that purchased an eClinicalWorks system.”
The DOJ is more likely to direct its attention to other software vendors that may have sidestepped certification requirements. Former officials at the ONC told FierceHealthcare that although eClinicalWorks was the most blatant offender, their approach to certification is not unique.