DOJ will probe more EHR vendors for false claims, sources say

When the Department of Justice and Office of the Inspector General find one vendor out of compliance, it’s only natural that they widen the scope to look at others in the same sector. Here’s what hospitals need to know now.
By Tom Sullivan
03:45 PM
Department of Justice DOJ EHR vendors eclinicalworks lawsuit

Are EHR vendors the new villains of healthcare?

A major electronic health record software player, eClinicalWorks, just got busted for falsely obtaining certification with the meaningful use criteria through its EHR — and suggestions immediately arose that the case was a shot-across-the-bow for the entire electronic health records industry.

“The DOJ is sending a message here. They imposed personal liability on the CEO and people who were orchestrating the alleged fraud and they went after a couple programmers,” said Robert Ramsey, a healthcare attorney with Buchanan, Ingersoll & Rooney. “That’s a message and so is the fact that they imposed a five-year corporate integrity agreement.”

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History shows that similar federal investigations tend to widen in scope.

DOJ hot on the trail of more EHR vendors?

Healthcare IT News called the first investigator listed on the eClinicalWorks settlement and asked point blank: Should hospitals executives expect the DOJ to investigate EHR vendors other than eClinicalWorks?

“I can’t answer any questions about it,” said Owen C.J. Foster, assistant United States attorney in the District of Vermont. “I cannot comment on that.”

[Concerned eClinicalWorks fiasco could happen to your EHR? Take these steps now]

Whereas Ramsey has not heard of any active investigations he said that he doesn’t doubt that the Department of Justice and Office of the Inspector General are scrutinizing all the EHR vendors now.

“DOJ and OIG naturally look beyond one particular company,” Ramsey said. “Look at the pharmaceutical space. They’ve gone after pharma for years and where they’re coming from is ‘Hey, if one vendor is doing it what’s to say others aren’t doing the same thing or something else that’s non-compliant.’”

And given that the meaningful use EHR program enabled the federal government to disburse more than $35 billion dollars, Ramsey said, there is plenty of money for federal prosecutors to pursue.

The new new villains?

Electronic health records vendors were already under fire business practices such as information blocking. And now that one major vendor has been caught cheating meaningful use criteria that blame will grow hotter than ever before.

“Every few years, the villains in the healthcare story change,” said Bob Wachter, MD, chair of the University of California Department of Medicine author most recently of The Digital Doctor: Hope, Hype and Harm at the Dawn of Medicine’s Computer Age. “Over the past several years, we've seen it shift from doctors to hospital execs to radiologists to pharma to ... who knows. One wonders whether EHR vendors will be next.”

That’s not out of the question.

Indeed there are plenty of reasons EHR vendors could be singled out for scorn: widespread complaints about poorly-designed systems, causing physician burnout, now this news of skirting of meaningful use regulations and, perhaps what will become worst of all, the practice of information blocking.

The 21st Century Cures Act, in fact, has provisions that could ultimately make many EHR vendors look a lot like eClinicalWorks does right about now. The law grants Health and Human Services Secretary Tom Price the power to impose stiff fines for data blocking: Up to $1 million for every single incident.

How widespread is the corruption?

The truth: We just don’t know. And as a counterpoint, there are some healthcare technologists who think the federal government should take some of the responsibility because it oversees the meaningful use reimbursement program certifying any and all software products that enable hospitals to earn EHR incentives. 

“Blaming eClinicalWorks and other EHR vendors for this sad situation is shortsighted, unless one also acknowledges the role of the entire meaningful use program, in distorting not just the EHR market, but also the ethical and moral principles of many EHR vendors,” said Chuck Webster, MD, President of EHR Workflow. “It was an expensive mistake, the unintended consequences of which we will be living with for many more years."

[Also: DOJ demands eClinicalWorks transfer data to rival EHRs]

Another part of the problem is that EHR vendors can effectively demonstrate specific functionalities during the certification process that do not necessarily perform that same way in production environments, according to Jim Tate, President and founder of EMR Advocate, which consults with numerous EHR companies during the certification process.

“There is a lot of risk out there for some of the major vendors,” Tate said.

Enter the bounty hunters

Now that whistleblower Brendan Delaney has collected $30 million from the eClinicalWorks settlement there is reason to think other whistleblowers might step forward and federal investigators might pursue additional vendors.

“This sort of bounty hunting is now incentivized — and that’s a good thing,” said Justin Sleeper, a former eClinicalWorks employee who is now a health IT consultant.

That is not to call Delaney a bounty hunter. Indeed, as the healthcare attorney Ramsey noted whistleblowers, particularly in healthcare where patient lives are at stake, are usually in it for more than the money. 

But one can imagine that the size of this reward has gotten the attention of other EHR users and hospital employees, who could be imagining similarly lucrative payouts. 

“Will we see more whistleblowers in this same space?” Sleeper asked. “I believe so.” 

Associate Editor Jessica Davis contributed to this report. 

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