EHR Whistleblower

Experienced Legal Representation for Reporting All Forms of Electronic Health Records (EHR) Fraud

Just like all aspects of the healthcare industry in the United States, electronic health records (EHR) are subject to stringent rules and requirements under federal law. Medical providers must strictly comply with the Health Information Technology for Economic and Clinical Health Act (HITECH Act) and all other applicable rules and requirements—and, if they fail to do so, EHR whistleblowers can help the federal government hold them accountable.

Whistleblowers can also help the federal government target EHR vendors and other entities and individuals that have access to EHR or that promote EHR-related software or services for use under the Promoting Interoperability Program, previously known as the Medicare EHR Incentive Program. Exposing EHR fraud is important for protecting both patients and taxpayers; and, in some cases, EHR whistleblowers will be eligible to receive financial rewards.

What is EHR Fraud (and When Should You Report It)?

This all raises a fundamental question: What is EHR fraud?

Simply put, EHR fraud is any improper practice related to the generation, storage, or use of electronic health records. While many cases of EHR fraud involve intentional misconduct, EHR whistleblowers can report unintentional violations as well.

For example, some of the most common forms of EHR fraud include:

EHR System Deficiencies and Failures

Healthcare providers must develop (or procure) EHR software systems that help them effectively manage all aspects of federal electronic health records compliance. This includes not only maintaining patient privacy and data integrity, but also complying with the federal recordkeeping requirements, diagnostic and procedure coding requirements, and the other billing rules and regulations that apply when billing Medicare, Medicaid, and other government healthcare benefit programs.

Electronic health record system deficiencies and failures can lead to systemic noncompliance—and this can jeopardize patient safety and result in fraudulent healthcare benefit program billings. As a result, these deficiencies and failures are not to be ignored. However, many healthcare providers not only fail to take the necessary steps to implement effective EHR systems, but they fail to adequately monitor and address issues with their systems as well.

Improper Claims for EHR Incentive Payments

To encourage the use of electronic medical records, the U.S. Department of Health and Human Services (DHHS) offers financial incentives to healthcare providers that implement EHR systems and transition from hardcopy patient records to EHR. However, simply generating and storing EHR (or claiming to generate and store EHR) is not enough to qualify for these incentives. Submitting fraudulent incentive payments claims is a longstanding and pervasive issue, and it is responsible for substantial taxpayer losses.

This form of EHR fraud also includes what is commonly referred to as “meaningful use” fraud. Under the federal regulations governing EHR incentive payments, healthcare providers must make “meaningful use” of their EHR systems. If a healthcare provider appears to have an EHR system on paper but does not meaningfully use EHR in practice, then it is not eligible for the financial incentives that are available.

Improper Billing Based on Inaccurate, Forged, or Fraudulent EHR

Improper billing based on inaccurate, forged, and fraudulent electronic health records is a pervasive issue as well. Billing fraud under Medicare, Medicaid, and other federal healthcare benefit programs costs taxpayers well over $100 billion per year. It also leads to negative patient outcomes; as, in many cases, patients do not actually receive the healthcare services for which these programs are billed.

When healthcare providers rely on inaccurate EHR or create forged or fraudulent EHR to overbill Medicare or Medicaid (or another federal healthcare benefit program), they can—and should—be held fully accountable. As discussed in greater detail below, the federal False Claims Act is the primary tool that DHHS and other federal authorities use to enforce compliance, and the False Claims Act includes provisions for EHR whistleblower rewards in appropriate cases.

Improper Use of EHR Clinical Decision Support

One of the key features of many modern EHR platforms is that they are designed to help facilitate accurate and efficient clinical decision-making through the use of standardized clinical terminology. This clinical decision support can not only help medical professionals ensure that patients receive the care they need (and that they don’t receive any unnecessary care), but it can also help healthcare providers bill for as many medically necessary services as possible.

However, clinical decision support features can also be (and often are) abused. In some cases, electronic health records software may be programmed to recommend treatment options or prescriptions that aren’t medically necessary, or they might be programmed to recommend more-expensive options when cheaper (and no less effective) alternatives are available. These are all forms of fraud that EHR whistleblowers can report to the federal government.

Illegal Kickbacks and Referral Fees Related to Patients and EHR Systems

Along with prohibiting fraudulent program billings, the False Claims Act also prohibits the payment of kickbacks and referral fees related to patients and EHR systems when these illegal payments involve program-reimbursed funds. In illegal kickback and referral fee cases, EHR whistleblowers can report (and potentially receive financial compensation for reporting) all parties involved. This includes not only physicians, clinics, hospitals, and other healthcare providers, but also pharmacies, pharmaceutical companies, EHR companies, and other parties.

While financial relationships involving EHR and patient referrals are permitted in some cases, these relationships must strictly comply with all applicable federal restrictions and requirements. With this in mind, if you are aware of any financial relationship that involves referrals or any other type of volume-based or revenue-based compensation arrangement, we encourage you to speak with an EHR whistleblower attorney at Oberheiden P.C.

EHR System Certification Fraud

Healthcare providers’ EHR systems must use certified EHR technology that meets the applicable federal standards. If an EHR system is not properly certified, then not only is the system ineligible for incentive payments, but it may present risks for other forms of EHR fraud as well.

In EHR system certification fraud cases, both technology vendors and health care providers can be held accountable. Crucially, even if a healthcare provider places its trust in a third-party vendor, the healthcare provider ultimately remains responsible for protecting its patients’ data, properly billing the government, and otherwise complying with the law.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Reporting EHR Fraud Under the Federal False Claims Act

From improperly claiming EHR incentive payments to improperly billing Medicare and Medicaid, EHR whistleblowers can report all types of fraud to the federal government under the powerful anti-fraud law known as the False Claims Act. If you are thinking about serving as an EHR whistleblower, here are five key facts you need to know:

• Serving as an EHR whistleblower involves filing a qui tam complaint with the government. Due to the formalities involved in a whistleblower lawsuit, experienced legal representation is strongly recommended. 
• Once you file a qui tam complaint, the government will investigate and determine if further action is warranted. 
• To be eligible for a whistleblower reward, your qui tam complaint must lead to a successful enforcement action for electronic health records fraud. 
• Whistleblower rewards under the False Claims Act can range from 10% to 30% of the amount the government recovers. 
• If the government decides to investigate, your level of involvement in the investigation will be a major factor in determining the amount of your whistleblower reward. 

When you schedule a free and confidential consultation at Oberheiden P.C., an EHR whistleblower attorney at our firm will walk you through the process of filing a qui tam complaint; and, if you are interested in moving forward, your lawyer will determine if you are eligible to serve as an EHR whistleblower. We provide whistleblower representation at no out-of-pocket cost to our clients, and we will not disclose any of the information you share unless you decide to move forward.

FAQs: Serving as an EHR Fraud Whistleblower