Enforcement Trends: Whistleblowers Get in on the EHR “Meaningful Use” Action

Wrongful payment of electronic health records (EHR) "meaningful use" incentives has become a growth area in government health fraud enforcement. (See GCA, July 10, 2017). And now private whistleblowers are joining the party.

The Government Crackdown
2017 was a breakthrough year for government EHR enforcement. In May, the Justice Department announced that leading EHR software vendor eClinicalWorks had settled false claims charges stemming from allegedly overstating the capabilities of its product. In addition to paying $155 million, the Massachusetts-based vendor agreed to enter into a Corporate Integrity Agreement imposing onerous restrictions.

Less than two weeks later, the OIG issued a report noting that CMS paid $729.4 million's worth of wrongful EHR incentive payments between May 2011 and June 2014 and declaring the OIG's determination to get all that money back.

The Privatization of EHR Fraud Litigation
Late in the year, new ground was broken when EHR fraud became the centerpiece for a civil lawsuit for money damages by a whistleblower without any government intervention. The other novel aspect of the $325 million qui tam case against over 60 Indiana hospitals unsealed on Nov. 21 is the identity of the plaintiffs, namely, a group of medical malpractice attorneys who claim they were among the victims to suffer personal harm as a result of the hospitals' alleged inclusion of inaccurate and untimely data about their medical records processing practices in their EHR meaningful use attestations. The relators claim they relied on the faulty data in bringing malpractice claims on behalf of their clients. The relators also claim that a national "release of information" provider overcharged patients for copies of their records in violation of HIPAA.