Tampa, Florida-based electronic health record (EHR) company Greenway Health has agreed to pay $57.25 million to resolve claims it falsely obtained EHR certification and incentivized clients in exchange for promoting or recommending its product to prospective new customers.
The settlement, announced by the Department of Justice Wednesday, marks the second time federal prosecutors have pursued legal action against an EHR vendor for falsifying Meaningful Use certification.
In May 2017, Massachusetts-based eClinicalWorks agreed to pay $155 million to settle allegations that it violated the False Claims Act by falsely claiming its software met Meaningful Use requirements.
In an emailed statement provided by the company, Greenway Health CEO Richard Atkin said the DOJ settlement is not an admission of wrongdoing and attested that all Greenway’s products remain ONC-certified.
“This agreement allows us to focus on innovation while collaborating with our customers to improve the delivery of healthcare and the health of our communities,” Atkin stated.
The DOJ also investigated another EHR company, Practice Fusion, with word of that investigation coming to light during Allscripts’ acquisition of the company, according to confidential documents obtained by FierceHealthcare and reported last January.
At one point, Allscripts was willing to pay up to $250 million for Practice Fusion but the DOJ inquiry likely played a role in the purchase price dropping to $100 million. McKesson was the subject of a similar DOJ investigation when Allscripts agreed to buy the company’s health IT portfolio for $185 million.
“Many people saw the eClinicalWorks settlement as a wake-up call,” said Matt Fisher, a partner with Boston-based law firm Mirick O’Connell and chair of the firm’s health law group, noting that this second DOJ settlement could be indicative of a trend.
“With these two big settlements, I wouldn’t be surprised to see other announcements along these lines,” Fisher said. “The [settlement] amounts are still a fraction of what was paid out by the government.”
In fact, in the DOJ settlement announcement, United States Attorney Christina E. Nolan for the District of Vermont said EHR companies should consider themselves “on notice.”
“In the last two years, my office has resolved two matters against leading EHR developers where we alleged significant fraudulent conduct. These are the two largest recoveries in the history of this District and represent the return of over $212 million of fraudulently-obtained taxpayer monies. These cases are important, not only to prevent theft of taxpayer dollars but to ensure that the promise of health technology is realized in the form of improved patient safety and efficient healthcare information flow,” Nolan stated.
Similar to the eClinicalWorks complaint back in May 2017, the complaint filed against Greenway Health by the DOJ under the False Claims Act alleges that the company caused its users to submit false claims to the government by misrepresenting the capabilities of its EHR product, Prime Suite, resulting in overpayments or improper payments to healthcare providers under the Meaningful Use program. The DOJ also alleges that Greenway Health violated the Anti-Kickback Statute by paying its clients, or providing other incentives, for them to recommend the product.
In its complaint, the DOJ contended that Greenway “falsely obtained 2014 Edition certification for its product Prime Suite when it concealed from its certifying entity that Prime Suite did not fully comply with the requirements for certification. Among other things, Greenway’s product did not incorporate the standardized clinical terminology necessary to ensure the reciprocal flow of information concerning patients and the accuracy of electronic prescriptions. Greenway accomplished its deception by modifying its test-run software to deceive the company hired to certify Prime Suite into believing that it could use the requisite clinical vocabulary.”
The U.S. government introduced the Meaningful Use program as part of the 2009 Health Information Technology for Economic and Clinical Health Act, to encourage healthcare providers to show "meaningful use" of a certified EHR. Under the program, the U.S. Department of Health and Human Services made incentive payments available to eligible healthcare providers that adopted certified EHR technology and met certain requirements relating to their use of the technology.
In order to be eligible to receive incentive payments, healthcare providers were required to meet certain targets for EHR-related activities.
In its complaint, DOJ alleged that Greenway was aware that an earlier version of Prime Suite, which was certified to 2011 Edition criteria, did not correctly calculate the percentage of office visits for which its users distributed clinical summaries, causing certain Prime Suite users to falsely attest that they were eligible for EHR incentive payments.
Further, DOJ claimed that Greenway knew about the error and didn’t fix it, in order to ensure that its users would receive incentive payments.
“As a result, numerous users of this earlier version of Prime Suite falsely attested that they were eligible for EHR incentive payments when, in fact, they had not met all necessary use requirements,” the DOJ complaint states.
The investigation was jointly handled by the Civil Division’s Commercial Litigation Branch, the U.S. Attorney’s Offices for the District of Vermont and Northern District of Georgia and the HHS Office of Inspector General.