Industry Voices—Electronic health records fraud often first identified by whistleblowers

Whistleblower
There are a few common signs that indicate EHR fraud may be occurring, such as if EHR systems are “hardcoded” to pass certification tests. (Getty/Imilian)

When billions of dollars are on the table in any industry, the risk for fraud, waste, and abuse rises significantly. In many cases, the only way fraud is reported is by whistleblowers who share their first-hand knowledge of potential fraud.

This is especially important in highly technical industries like the electronic health records space.

Significantly, a 2012 Health and Human Services Office of Inspector General report estimated that the Centers for Medicare and Medicaid Services inappropriately paid over $700 million in connection with EHRs. Furthermore, based on recent lawsuits settled by the Department of Justice (DOJ), there is reason to believe other EHR fraud is going undetected. 

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Left unchecked, EHR fraud not only defrauds American taxpayers but it also potentially puts patients at risk.

Recent EHR fraud claims raise an alarm

In 2017, one of the nation’s largest EHR providers, eClinicalWorks, settled a lawsuit with the U.S. Department of Justice for $155 million. In that case, the government alleged that eClinicalWorks gave customers kickbacks for publicly promoting its products, while at the same time, concealing from its certifying entity that its software did not comply with the requirements for certification.

RELATED: Allscripts reports $145M settlement agreement with DOJ

Similarly, in 2018, the DOJ settled with EHR provider Greenway Health LLC for $57.25 million, alleging that the company concealed from its certifying entity, Drummond Health, that its EHR product Prime Suite did not meet requirements for certification.

Other recent cases have shown that healthcare providers are also engaging in potential fraudulent practices connected to EHRs. Coffey Health System paid $250,000 to settle allegations that it submitted false claims for incentive payments for meaningful use of EHRs.

The claims resolved by these above settlements are allegations only and do not determine liability, according to the DOJ. The settlements also are not admissions of wrongdoing on behalf of the EHR vendors or healthcare organizations.

RELATED: eClinicalWorks pays $155M to settle claims it falsified EHR certification

Still, other cases have alleged that improperly designed and implemented EHR systems have led to adverse patient outcomes.

While these cases represent a small fraction of the EHR industry, the fraud allegations highlight the potential ease with which organizations can manipulate the system, cost taxpayers millions, and potentially place patients’ lives at risk.

Detecting EHR-enabled fraud

Often, the key to identifying fraud is to trust your instincts. If it looks suspicious, there is nothing to lose by talking with an attorney.

However, there are a few common signs that indicate EHR fraud may be occurring. For example, it may raise a red flag if a provider is receiving an overall greater reimbursement from government programs compared to the revenue they received while using paper records. Another potential cause for concern is if EHR systems are “hardcoded” to pass certification tests.

RELATED: In whistleblower lawsuit, former CHS executives allege EHR had pervasive, dangerous flaws

Still further, receiving remuneration (aka a kickback, bribe, or rebate) from an EHR company for promoting or using its software is a red flag.

How to report fraud

First, it’s important to know that individuals who report fraud have specific legal rights and protections, even if it is determined that fraud has not actually occurred.

The False Claims Act (FCA) provides protection to whistleblowers from retaliation, such as being fired or demoted. Also, cases brought under the federal FCA are filed under seal in a U.S. District Court, which means the case remains a secret to everyone except the federal judge and government prosecutors while the Justice Department investigates the matter.  

RELATED: Greenway Health to pay $57M to settle claims it falsified EHR certification 

It is recommended that whistleblowers consult an attorney to ensure protection, and if fraud can be proven, your attorney can take the allegations to the federal government so that the fraudulent organization can be brought to justice. If the allegations you bring to light are successfully prosecuted, whistleblowers may be entitled to a monetary reward.

As EHR systems continue to become increasingly prevalent throughout our healthcare system, it’s critical that professionals who work with EHR products monitor their systems for irregularities and potential fraud. The firsthand knowledge these professionals bring can be the difference in saving taxpayer money and patient lives.

William G. Powers is an attorney with Baron & Budd’s Washington D.C. office, where he specializes in qui tam litigation.

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