Electronic health records, or EHR, were designed to make the medical industry safer, smoother, and more effective. Instead, after an investment of over $36 billion with substantial funding from taxpayers, electronic health records fraud continues to plague the healthcare industry.
If you have information about EHR fraud, you may be able to become a whistleblower. Whistleblowers are protected by federal and some state laws against retaliation by their employers. They can also qualify to receive substantial financial rewards in exchange for information that leads to a recovery of defrauded taxpayer funds. To understand which whistleblower laws might apply in your situation, as well as to report EHR fraud or meaningful use failures, contact the law firm of Tycko & Zavareei LLP today. Our healthcare fraud attorneys are ready to protect the truth, taxpayers, and your rights as a whistleblower.
What is an Electronic Health Record or EMR?
Electronic health records, also known as electronic medical records, or EMR, were heralded as the way of the future when they were introduced in the early 2000s. Being able to access all of your medical data on one electronic system was meant to streamline patient care and facilitate diagnostic testing, improve medical decision making, aggregate data, and provide numerous other benefits to medical staff and patients.
Many patients report losing access to their records when switching between doctors. Additionally, many healthcare providers were concerned about their ability to get a useful picture of a patient’s wellness without seeing the full scope of their medical history. EHRs were a supposedly ground-breaking software development that was designed to address these concerns and more.
EHR systems are, at its core, record systems that allow for the digital storage of medical records, patient history, prescription interactions, and testing results. They are used extensively by emergency rooms and hospitals in an effort to provide life-saving care and efficient data storage and access. EHR programs have been unfortunately wrought with faulty coding, proprietary designs that prevent inter-office communication, missing or inaccurate test results that have cost patients their lives, misreporting and financial fraud, and physician burnout as ER doctors report making upwards of 4,000 clicks per day just to navigate the finicky software systems. These vulnerabilities call for improvements to EHR systems, but until that happens, electronic health record fraud will continue to be an issue in the healthcare industry.
What is the HITECH Act?
The 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act offered billions of dollars in federal incentive payments to hospitals and medical providers to encourage physicians and other medical professionals to switch to EHR systems and abandon the old paper filings by lowering the cost of making the technology switch. These government-backed, taxpayer-funded incentives were incredibly effective and resulted in almost all US hospitals and many physicians switching over to EHR systems for their record keeping. Today, more than 95 percent of hospitals use EHR technology.
However, EHR systems in healthcare are a controversial topic. The success of this program was seen as short-lived by many in the medical community. Many EHR systems were rushed in development, leading to issues that have caused tangible harm to patients and practitioners. When the HITECH Act was passed, individual developers were allowed to create their own versions of EHR software as long as it met federal requirements. Since there is no universal EHR system, this has lead to many systems being unable to communicate with one another or share information between providers. This design flaw has led to numerous EHR malpractice lawsuits and concerns about difficult-to-trace EHR fraud.
What Constitutes Electronic Health Records Fraud?
EHR fraud often involves vendors, developers, and/or healthcare providers attempting to illegally profit from kickbacks or other fraudulent incentive payments. When faulty systems are knowingly developed using taxpayer money, or when EHR systems are manipulated to function differently under certification testing than they will in the hands of providers, this qualifies as electronic health records fraud.
EHR software must meet certain minimum standards and receive federal certification in order to qualify for incentive payments to subsidize the cost of its installation. If an EHR provider falsely certifies their software, or knowingly markets a faulty software, they may be held liable if a hospital or medical provider receives government incentive payments for it.
In other cases, providers who take advantage of the complexities of their EHR system and file for higher reimbursement than they should are also committing EHR fraud. Both kinds of fraud are reportable under the False Claims Act and can result in a whistleblower reward.
Common Types of Electronic Health Records Fraud
EHR fraud, like other types of healthcare fraud, can come in many forms. However, it always harms the taxpayer, as well as the patients whose care depends on the fast exchange of accurate medical information via electronic records. Physicians also report burnout from clicking through EHR software all day, as well as unnecessarily complicated or obscured medical data that is integral to making important and time-sensitive medical decisions.
The following represent common types of Electronic Health Records fraud:
- Offering or receiving kickbacks for prioritization in the “clinical decision support” feature: Kickbacks are illegal in the medical industry because of their potential to sway medical decisions in favor of financial gain. In a recent kickback EHR case, EHR company Practice Fusion Inc. admitted to soliciting and receiving kickbacks from a major opioid company in exchange for utilizing its EHR software to influence physicians’ prescriptions of opioid pain medications. The EHR company gave opioid manufacturers the chance to collaborate in designing “clinical decision support,” or CDS alerts, sometimes even writing the language of the alerts themselves, in exchange for alleged “sponsorship payments” from the pharmaceutical vendors. The $145 million settlement from this EHR kickback case is a drop in the bucket compared to the harm done by the pushing of highly-addictive opioids onto patients via the supposedly-neutral CDS alerts of the EHR system.
- EHR vendors administering kickbacks to customers for recommendations: EHR vendors are not allowed to solicit or offer kickbacks to customers, whether they are medical providers or office administrators. Kickbacks may be financial in nature, but they may also look like inflated speaker fees, sponsorship opportunities, or even non-monetary benefits like expensive dinners or hotel stays.
- Providers submitting false claims for EHR incentive payments: EHR incentive payments are funded by taxpayer dollars. Therefore, submitting false claims in order to receive EHR incentive payments is reportable under the False Claims Act and may leave a provider who does so liable for up to treble damages, in addition to other financial penalties.
- Meaningful use fraud: Misreporting an EHR system’s capabilities is considered meaningful use fraud. For instance, in one recent New Jersey case, EHR company Viztek LLC was ordered to pay $500,000 to resolve allegations that it fraudulently obtained certification for its product, known as “EXA EHR.” This caused healthcare providers who purchased and installed it, and benefited from government incentive payments, to submit false claims for certification.
- Upcoding and unbundling: Upcoding is when healthcare providers submit more expensive procedures for reimbursement than were actually performed, in order to profit from a patient’s care. Performing procedures which are not medically necessary for the sake of profit offers no benefit to the patient and may even result in undue suffering from additional and even detrimental testing. Unbundling is another common kind of insidious healthcare fraud where providers submit multiple, separate claims for services that should be billed together in order to increase their share of Medicare or Medicaid payments. Both kinds of billing misrepresentations are easy to mask under the complexities of many electronic medical record systems.
- Misrepresenting system capability to pass certification: EHR vendors have been known to “hard-code” a model of their software in order to pass certifying tests without guaranteeing that the models actually sold to hospitals and doctors have the same qualifications. Doing so is illegal and reportable as electronic health records fraud.
How Can EHR Fraud Harm Patients?
The issues with electronic health records have been almost too numerous to name. EHR fraud has caused serious harm to patients, including death in some cases. A study from PEW Charitable Trusts aimed at promoting patient safety found that one in five patients found errors in their own medical records. These errors can cause the wrong amounts of medication to be prescribed, dangerous drug reactions or patient allergies to go ignored, test results or orders to be lost, and misdiagnoses or misplaced patient information.
The following represent common and dangerous examples reported by patients over the past years of widespread EHR fraud:
- Failing to link the correct medical records to the patient
- Errors in medical records and charts
- Failing to recognize potentially dangerous drug interactions
- Manipulation of EHR systems to employ fraudulent medical billing practices like upcoding and unbundling.
- Programming EHR programs to recommend more expensive prescriptions and ignore cheaper alternatives.
- Programming an EHR system’s “clinical decision support” to recommend specific prescriptions, tests, and treatments that benefit parties with undisclosed financial agreements to the vendor.
How Does EHR Fraud Harm Taxpayers?
EHR fraud, like all kinds of fraud, harms the taxpayers who pay into the system. When faulty EHR programs are subsidized, tax dollars go to rewarding lazy or sloppy coding and product development, as well as to the unethical businesses that market a poor quality product. Instead of utilizing tax dollars to create the best systems possible for patients and healthcare providers, these software development companies are more concerned with profits, even at the risk of doing great harm to vulnerable patients. Your hard-earned tax dollars should never line the pockets of those who have failed to create a useful product, and used market something dangerous instead.
EHR Fraud: How to Blow the Whistle
Blowing the whistle on EHR fraud helps everyone – it protects patients, makes hospitals more efficient, punishes bad actors, and preserves taxpayer dollars for a more worthy cause. In order to become a whistleblower, you will likely need to take the following steps:
- Collect potential evidence: An EMR fraud lawyer can help you develop a plan of action for what kinds of evidence you can collect for a whistleblower claim. Because most medical record fraud involves patients’ healthcare, certain documents must be kept anonymous in order to be reportable. However, contrary to popular belief, health records are generally admissible evidence in reporting fraud, as long as certain guidelines are followed. On the other hand, if you work as a developer or in marketing for an EHR firm, you may have insight into issues with EHR systems operability or performance that others might miss. Company paperwork, emails, certification documents, marketing materials, and more may all become useful evidence when reporting EHR fraud.
- Talk to an experienced EHR whistleblower lawyer: Qui tam law, which is a civil legal area that gives everyday citizens the opportunity to collect whistleblower payouts and protections as a reward for helping catch fraud against the government, makes it possible to report EHR fraud under the False Claims Act. However, EHR law violations can involve civil and criminal liability, as well as multi-state or federal statutes. For this reason, you will likely need an experienced EHR whistleblower lawyer by your side to file your qui tam claim.
- File a whistleblower lawsuit: You may file anonymously when you make your claim through a qui tam law firm. Your employer will not be notified of your identity until after the investigation into your claims. Filing your lawsuit creates an opportunity for the Department of Justice to decide whether or not to intervene in your case. Their help can unearth more evidence that can lead to a higher recovery, and therefore higher whistleblower payout. However, if the DOJ declines to intervene, you may still be able to pursue your case and be awarded a substantial recovery for your bravery and honesty.
- Remain patient: Whistleblower lawsuits may take months or even years to resolve. In cases of extensive fraud, the investigatory period may be a cause of delay. Cooperate as much as possible throughout the process, and know that your qui tam law firm will continue to follow up and pursue the matter so that you can attend to your own priorities.
- Collect your reward: In exchange for your help in recovering stolen or misappropriated funds, a whistleblower may be eligible to receive anywhere from 15 to 30% percent of the total amount recovered in an EHR fraud case.
EHR Whistleblower Protection
The False Claims Act, the nation’s most powerful anti-fraud law, protects EHR whistleblowers. It is illegal to retaliate against a protected whistleblower.
Some prohibited forms of employee retaliation include:
- Firing or suspension
- Reduction of pay or hours
- Harassment or threats
- Change to employment as a result of a protected disclosure
If your employer discriminates against you for blowing the whistle on fraud, you may be able to sue them in a separate claim for reinstatement, double back pay, front pay in cases where reinstatement is not possible, legal and attorneys’ fees, and other damages. Contact an EMR fraud lawyer today to understand how you can fight back against wrongful termination or other kinds of harassment due to blowing the whistle.
EHR Whistleblower Rewards
If a whistleblower provides original, previously unreported information that leads to a recovery of defrauded government funds, they can receive up to 30 percent of the government’s total recovery in a successful qui tam case. The higher the settlement, the higher a whistleblower’s payout traditionally is.
In general, the best outcome for an EMR fraud case is for the government to intervene in the investigation. They will be able to bring the full might of their discovery process to uncover the extent of wrongdoing. However, in order to convince the Department of Justice to intervene, you need a qualified qui tam lawyer by your side who is in good standing with the federal agency. A fraud case, especially against a well-known company, is not the time to work with an unknown or inexperienced attorney. The complexities of qui tam law are well-known to those in the legal profession, especially in EHR cases that can involve widespread liability and false claims from hospitals as well as software developers.
Tycko & Zavareei LLP is a tried and trusted qui tam firm that has a long history of successful collaboration with the Department of Justice in uncovering the truth about wrongdoing. Our whistleblower attorneys are top graduates of the nation’s best law schools, and we have several former Department of Justice employees in our ranks serving as some of our top whistleblower lawyers. We have helped whistleblowers, especially those in healthcare, receive millions of dollars in payouts directly stemming from their information. Likewise, we have a proven track record of protecting whistleblowers’ confidentiality and rights in cases that involve their professional reputations.
Talk to an EHR Fraud Whistleblower Lawyer
Issues with electronic medical records may be more than just headaches at work. Reporting problems with electronic health records can qualify you for a whistleblower reward if there is an issue with meaningful use, false certification, upcoding or unbundling, or something else.
If you work in healthcare or with an EHR company and you suspect wrongdoing, do not wait to come forward. Once information has been reported, it becomes ineligible for a reward.
Protect vulnerable patients as well as yourself by speaking up with the truth. Contact the law firm of Tycko & Zavareei LLP today to speak with an expert in the field of EHR fraud and find out how we can help. A consultation is free and confidential.