On Thursday, January 28, 2021, the DOJ announced that electronic health record (EHR) vendor athenahealth, Inc. (Athenahealth) agreed to pay $18.25 million to resolve allegations that it violated the False Claims Act (FCA). In a complaint filed in conjunction with the settlement announcement, the government alleged Athenahealth employed marketing programs that involved paying illegal kickbacks to push sales of its EHR product, athenaClinicals.
The complaint alleges that Athenahealth ran three problematic marketing programs to generate sales that violated the FCA and Anti-Kickback Statute. First, according to DOJ, Athenahealth marketers invited customers to all-expense paid events, such as the Masters Tournament and Kentucky Derby, that included travel, accommodations, meals and alcohol. Second, DOJ alleged that Athenahealth paid fees to existing clients under a “lead generation program” designed to identify new prospective customers, paying up to $3,000 per physician that signed up for its services regardless of how much time the client spent speaking with the “lead.” Third, the complaint stated that Athenahealth entered into “conversion deals” with competing companies that had discontinued their health information technology products, whereby Athenahealth would pay those competing companies for client referrals based on the value and volume of successfully converted practices.
According to the complaint, Athenahealth improperly generated sales for itself while causing healthcare providers using its EHR product to submit false claims to the federal government when they attested to using a certified EHR product to receive “meaningful use” incentive payments or avoided payment reductions under the HITECH Act incentive programs.
This is the latest in what has been an ongoing action taken by the Department against EHR vendors, and the Department made a point in its press release to state that EHR vendors would continue to be a focus of FCA and Anti-Kickback enforcement. Acting Assistant Attorney General for the DOJ’s Civil Division Brian Boynton referred to the settlement as part of “the department’s continued commitment to holding EHR companies accountable for the payment of unlawful kickbacks in any form.”
The release further stresses that “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,” quoting U.S. Attorney Andrew E. Lelling. “If the benefits of Electronic Health Records are to be fully realized, patients must be confident providers have selected the most effective system – not the one paying the largest kickbacks,” said Phillip M. Coyne, Special Agent in Charge for the OIG of the HHS.
Athenahealth has released a statement saying that it admitted no wrongdoing through the settlement.
The DOJ’s press release can be found on its website here. A copy of the complaint filed by the U.S. in U.S. v. Athenahealth, Inc., U.S. District Court, District of Massachusetts, Case Nos. 17-cv-12125-ADB and 17-cv-12543-ADB, can be downloaded here, and a copy of the settlement agreement can be downloaded here.
