Joshua Levy, co-chair of Ropes & Gray's litigation & enforcement practice, addresses an emerging trend in the electronic health records space, where a number of companies are being investigated under the False Claims Act.
My name is Joshua Levy. I'm the co-chair of Ropes & Gray's litigation & enforcement practice and a former federal prosecutor. In this video, I want to share some information about an emerging trend in the electronic health records space, where we're seeing a number of companies under investigation under the False Claims Act.
An emerging trend we've seen in Department of Justice enforcement actions is in the electronic health records space. The first case that was brought in this area was in May 2017, when a company called eClinicalWorks settled a case for $155 million with the Department of Justice under the False Claims Act, and also was required to enter into a corporate integrity agreement. This is a new area of enforcement for the Department of Justice, in which their theory is that companies which provide electronic health records to health care providers have caused those health care providers to submit false claims to the federal government because the services that they were receiving from the electronic health records company was defective or deficient.
There is a program in the federal government that $35 billion have been spent in the last ten years providing what are called "meaningful use payments" to health care providers who are making substantial use of electronic records for their patients. Those requirements are based on a series of certifications that electronic health records companies need to satisfy. And what's happening in these cases is that the government is saying the electronic health records companies did not meet the requirements, falsely obtained certification, and therefore caused doctors to submit false claims unknowingly.
The government is also alleging that some of the marketing programs by these companies violate the Anti-Kickback Act. And what we're seeing here is a trend we've seen in other areas where there's large streams of money from the federal government going to certain programs – the whistleblower lawyers and the Department of Justice take a very close scrutiny to that. And what we're seeing is now several companies in the (EHR) electronic health records space, are under investigation.
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