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The government giveth and the government taketh away: Government enforcement and electronic health records

Scott R. Grubman (sgrubman@cglawfirm.com) is a partner at Chilivis Grubman in Atlanta, Georgia, where he focuses his practice on representing healthcare providers of all types and sizes in connection with government investigations and False Claims Act litigation.

In 2011, the Centers for Medicare & Medicaid Services (CMS) established the Medicare and Medicaid EHR Incentive Programs—now known as the Medicare Promoting Interoperability Program—to encourage healthcare providers to “adopt, implement, upgrade, and demonstrate meaningful use of certified electronic health record technology.”[1] Then, in 2016, CMS announced that it had allocated nearly $35 billion in meaningful use incentive payments to more than 500,000 providers.[2]

As with most well-intentioned, government-backed incentive programs, outlay of those funds has been followed by years of scrutiny and government enforcement actions. In June 2017, the U.S. Department of Health & Human Services (HHS) Office of Inspector General (OIG) announced the findings of an audit alleging that CMS inappropriately paid more than $729 million in incentive payments to healthcare providers who did not meet meaningful use requirements.[3] In December 2019, OIG announced that, out of the $10.8 billion that went to acute-care hospitals, an estimated $93.6 million was incorrectly paid.[4]

It is not surprising then that the Department of Justice (DOJ) has dedicated significant resources to investigating and prosecuting fraud matters related to electronic health record (EHR) incentive payments and other aspects of the EHR industry. In December 2020, Deputy Assistant Attorney General Michael Granston, who oversees False Claims Act (FCA) enforcement, made remarks to the American Bar Association’s Civil False Claims Act and Qui Tam Enforcement Institute.[5] Discussing the DOJ’s FCA enforcement priorities, Granston identified fraud pertaining to EHRs as a likely “focal point” of the DOJ’s future enforcement efforts. According to Granston, “providers increasingly rely on electronic health records to provide vital and unbiased information to improve treatment outcomes for patients. While electronic software is intended to reduce errors and improve the delivery of care, the transition to a digital format has also introduced new opportunities for fraud and abuse.”

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