Government Puts Electronic Health Records Companies 'On Notice' Of Vigorous False Claims Act Enforcement

Federal prosecutors announced yesterday the Government's settlement with electronic health records ("EHR") vendor Greenway Health, LLC ("Greenway") of False Claims Act ("FCA") allegations for a payment of $57.25 million and Greenway's acceptance of a Corporate Integrity Agreement ("CIA"). The Government's FCA complaint was filed by the U.S. Attorney's Office for the District of Vermont, the same office that handled the May 2017 civil settlement with EHR company eClinicalWorks for $155 million. The Greenway settlement is the second largest civil settlement in the District of Vermont's history, topped only by the eClinicalWorks settlement.

The U.S. Attorney for Vermont, Christina Nolan, was clear that her office would continue to use its developing expertise to pursue nationwide cases dealing with EHR companies, stating that "[t]his is the new frontier of health care fraud." According to Nolan, "[t]his resolution demonstrates [her] office's initiative and resolve to vigorously uncover and to doggedly pursue these complex cases...EHR companies should consider themselves on notice" (emphasis added).

Much like the eClinicalWorks settlement, the Greenway settlement resolves allegations that Greenway caused purchasers of its products to falsely certify that they were using EHRs that complied with Government standards for the use of EHR technology, knowing that its products and their use did not in fact meet these standards. Under the American Recovery and Reinvestment Act of 2009, the Government offers incentives to health care providers that meet these standards and, in so doing, demonstrate "meaningful use" of certified EHR technology. According to the Government, Greenway knowingly marketed technology that resulted in the payment of incentives to providers who did not actually meet meaningful use standards.

In particular, the Government alleged that Greenway modified the test software it presented to its certifying entity for its 2014 edition to pass the entity's test, concealing the fact that its software - Power Suite - did not truly meet Government standards. This alleged deception allowed Power Suite users to receive Government incentive payments even though they were not using a compliant product. The Government also alleged that Greenway was aware of a bug in an earlier version of its software that caused incorrect calculations of the percentage of office visits for which users distributed clinical summaries, causing users to falsely...