Massachusetts-based Athenahealth, aka Athena, will pay $18.25 million to settle claims that it violated the False Claims Act (FCA) and the Anti-Kickback Statute (AKS) in the promotion of its electronic health records (EHR) product AthenaClinicals.
For years, prosecutors claim, Athena ran three marketing programs that violated both the FCA and the AKS. Under one of these illegal programs, Athena allegedly paid as much as $3,000 to each doctor who signed up for its services.
The alleged misconduct came to light in two whistleblower lawsuits filed by Geordie Sanborn, Cheryl Lovell, and William McKusick. Sanborn is a Director of Sales at Alert+ and resides in Massachusetts. McKusick is the owner of Generations at Home Wellness Care and resides in Arizona. Alert+ offers “instant help in case of health emergency,” while Generations Home Care provides home care for Alzheimer's, dementia, and Parkinson's patients. Lovell was the CEO of Southland Home Health and Hospice between 2012 and 2019 and resides in Arizona. The nature of their positions in the healthcare industry allowed the tipsters to detect Athenahealth´s improper conduct.
Athena allegedly offered illegal kickbacks to boost sales of its EHR product. This caused healthcare providers to submit false claims for payment to the government, which then reimbursed them for the costs of implementing AthenaClinics.
According to the lawsuit against Athena, prosecutors believe that between June 2014 and March 2019, “Athena provided existing and potential clients with all-expense-paid trips to sporting, entertainment, and recreational events, which Athena referred to as ‘Concierge Events,’” including all-expenses-paid trips to the Kentucky Derby and the Masters golf tournament.
Between 2014 and 2020, Athenahealth allegedly “entered into ‘Client Lead Generation’ agreements with current clients under which it paid for referrals of potential new clients.”
Prosecutors also alleged that between 2014 and 2017, Athena made several deals with Health Information Technology (HIT) companies that were planning to discontinue their EHR products. These agreements provided that the HIT companies would recommend Athenahealth’s products to their clients in exchange for monetary compensation.
By offering different kinds of kickbacks and perks to individuals and companies in exchange for referrals, Athenahealth allegedly violated the Anti-Kickback Statute. Under the AKS, it is illegal to pay any remuneration, in cash or in kind, to induce any person “to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service” for which payment may be made under a Federal healthcare program.
Upon the settlement announcement, United States Attorney Andrew E. Lelling commented, “Across the country, physicians rely on electronic health records software to provide vital patient data. Kickbacks corrupt the market for health care services and risk jeopardizing patient safety.” Lelling said the DOJ will “aggressively pursue” EHR technology providers that “fail to play by the rules.”
According to Acting Assistant Attorney General Brian Boynton for the DOJ's Civil Division, “EHR technology plays an important role in the provision of medical care, and it is critical that the selection of an EHR platform be made without the influence of improper financial inducements.”
This case is an important landmark in terms of holding EHR vendors accountable. It is, however, not the first time an EHR technology provider has settled a large fraud case. In 2017, eClinicalWorks agreed to pay $155 million to resolve allegations involving a number of violations, including illegal kickbacks. The whistleblower in that case, Brendan Delaney, received a $30 million award.
Insiders with information about improper conduct by Health Information Technology companies, including illegal kickbacks, can be eligible for cash awards. To receive an award, insiders must file a False Claims Act lawsuit with the help of a healthcare whistleblower attorney. If their case reaches a settlement or favorable verdict, they can receive between 15 and 30 percent of the government’s recoveries.
A spokesperson for the Department of Health and Human Services said in a statement that it is important for government healthcare beneficiaries to ensure healthcare providers have access to the best EHR technology available, “not the one paying the largest kickbacks.”
An FBI agent who participated in the investigation emphasized the illegal nature of offering “invitations to all-expense-paid sporting, entertainment, and recreational events, and other perk-filled offers” in exchange for referrals and lucrative contracts. “The FBI will continue to work with our law enforcement partners to do everything in our power to safeguard our government health care programs and the taxpayers picking up the bill,” the agent said in a DOJ press release.
Under the FCA, whistleblowers Geordie Sanborn, Cheryl Lovell, and William McKusick stand to share a multimillion-dollar award.
See Something? Say Something.
If you are a healthcare worker with inside information about fraud involving a government funded healthcare program, you may be entitled to a large cash reward. We can help you obtain a reward and stop the fraud. Calling our hotline will put you in contact with a whistleblower lawyer who can help you assess your case and file for a reward. Medicaid Fraud Hotline: 888.742.7248 or REPORT ONLINE AND CLAIM A REWARD
Patient? Healthcare professional not interested in a reward or wanting to remain completely anonymous? Contact 1-800-MEDICARE. (There are no rewards for reporting directly to 1-800-MEDICARE.)