A Miami-based developer of electronic health records (EHR) software products and related services has agreed to pay $3,806,966.70 to resolve allegations that it paid unlawful kickbacks to generate sales of its EHR products.
The United States alleged that the EHR developer violated the False Claims Act and the Anti-Kickback Statute through its marketing referral program called the “Champions Program.” In particular, it is alleged that between January 1, 2012, and March 31, 2017, the Company offered and provided its existing clients cash equivalent credits, cash bonuses, and percentage success payments to recommend the EHR developer’s products to prospective clients. Existing clients who participated in the Champions Program (“participants”) executed written agreements prohibiting them from providing negative information about the EHR developer’s products to prospective EHR clients. Prospective EHR clients were not told about this referral-kickback arrangement or about the contract that prohibited participants from sharing negative company information with them.
The United States alleged that the EHR developer’s payments to participants violated the federal Anti-Kickback Statute. In addition, the United States alleged that the EHR developer violated the False Claims Act because the kickback payments rendered false the claims submitted by the EHR developer for federal incentive payments under the Medicare and Medicaid Electronic Health Records Incentive Programs (also known as Meaningful Use Programs) and the Merit-Based Incentive Payment System (also known as MIPS).
The settlement resolves allegations in a lawsuit filed in federal court in Miami, Florida. The lawsuit was filed under the qui tam or whistleblower provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery. The Act allows the government to intervene and take over the action, as it did in this case. The whistleblower share to be awarded in connection with the settlement is $803,269.97.
Compliance Perspective
Issue
It is extremely important that all members of the healthcare team are aware of what may be considered a false claim or a kickback. Ensure that all staff are aware that these violations can occur whether they are intentional or not intentional. Failure to promptly report a false claim or kickback can result in lawsuits, fines, and other sanctions. Additional information is available in the Med-Net Corporate Compliance and Ethics Manual, Chapter 1, Compliance and Ethics Program, CP 2.3 General Legal Duties and Antitrust Laws.
Discussion Points
- Review policies and procedures for preventing and reporting a false claim or anti-kickback violation. Update your policies and procedures as needed.
- Train all staff on the False Claims Act and Anti-Kickback Statute and what can be considered a false claim or a kickback. Include information on how to report concerns and suspected violations, and that prompt reporting is mandatory. Document that the trainings occurred and place in each employee’s education file.
- Periodically audit staff to ensure that they are aware of what should be done if they suspect a false claim or illegal kickback has occurred, whether intentionally or unintentionally. Conduct audits of documentation and billing routinely to prevent and detect errors before they progress to a false claim.
FOR MORE INFORMATION ON THIS TOPIC VIEW: FRAUD MODULE 3 – MASTERING LEGAL IMPLICATIONS AND ANTITRUST LAWS and UNDERSTANDING AND USING THE MEDICARE TRIPLE CHECK PROCESS.
