April 25, 2022
The United States has partially intervened in a False Claims Act qui tam case against electronic health records (“EHR”) software vendor Modernizing Medicine, Inc. (“ModMed”) and its two co-founders. The case remains pending in the District of Vermont. The relator’s complaint alleges that ModMed submitted false claims to government healthcare programs relating to its EHR software product called Electronic Medical Assistant. The United States will also file its own complaint within ninety-days of its intervention announcement. That complaint will identify the allegations the United States will pursue against each of the three named defendants. This case is the latest example of the U.S. Department of Justice’s focus on EHR fraud. Recently, the Whistleblower Law Collaborative represented a successful whistleblower in a case against Athenahealth regarding its EHR product, athenaClinicals.
The Electronic Health Record (EHR) Incentive Program (also known as the “Meaningful Use” program) was created as part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act). The HITECH Act incentivizes healthcare providers who adopt and demonstrate “meaningful use” of certified EHR technology. To obtain certification, companies marketing EHR technology to doctors must demonstrate that the product satisfies applicable HHS-adopted certification criteria. This is because the health care system now relies heavily on such software to safely and accurately record and transmit vital health information. The government enacted the Meaningful Use program to further its goals for improving healthcare. Those goals include:
We describe the EHR Incentive Program in more detail on our website. Additionally, we include a non-exhaustive list of examples of EHR fraud.
The complaint, filed in 2017, names ModMed, as well as, its CEO Daniel Cane, and its CMO Michael Sherling as Defendants. The company, headquartered in Boca Raton, Florida, sells an EHR software product called Electronic Medical Assistant. ModMed sells its EHR software via subscription services to specialty medical providers. These subscribers include dermatologists, gastroenterologists, orthopedists, urologists, and others. Medical providers use EHR software because it streamlines diagnostic documentation, prescribing medications, telemedicine, billing, and more.
According to the qui tam complaint, ModMed falsely stated that its EHR software complied with the requirements for certification. In addition, ModMed falsely asserted the software qualified for the payment of incentives under the Meaningful Use program. The complaint also alleges that the Electronic Medical Assistance software inaccurately e-prescribed medications, incorrectly charted medical history, confused chart entries between patients, and inaccurately associated lab results.
ModMed also allegedly violated the Anti-Kickback Statute by offering improper remuneration to providers in return for subscribing to ModMed’s software. Incentives that run afoul of the Anti-Kickback Statute can take many forms. The inducements allegedly made by ModMed were in the form of an enhanced exclusive interface platform, an e-couponing program, and a prescription prior authorization program. Additionally, another incentive was the “upcoding” ModMed built-in to its platform. ModMed did this by programming the software to boost E/M codes for established patients and adding modifiers to procedures whether the modifier was appropriate. ModMed did this because it increased payments made by Government healthcare programs.
Because more providers are turning to the use of electronic health records, more fraudsters are targeting the software for use in their illegal electronic health record fraud. Previously, the Whistleblower Law Collaborative represented a successful whistleblower in a case against Athenahealth for paying illegal kickbacks to induce referrals of its EHR product, athenaClinicals. That case resulted in a $18.25 million settlement.
If you are aware that a contractor has falsely certified that its EHR product meets the “meaningful use” criteria required by HHS certification or is otherwise not eligible for incentive payments to providers, we urge you to contact the Whistleblower Law Collaborative. Our attorneys include several former federal prosecutors who can discuss your concerns in a confidential and secure setting.