Greenway Health: Test Builds, Favorable Metrics and Paid Recommendations

Greenway Health agreed to pay $57.25 million in the Greenway settlement to resolve allegations of false Prime Suite certification, misleading meaningful-use calculations and paid customer recommendations. An insider at an electronic health records vendor may recognize the build sent for testing, the defect left unfixed or the paid recommendation offered to a prospective customer. The government alleged that those decisions caused healthcare providers to submit false claims for federal incentive payments.

The Justice Department announced the resolution with the Tampa, Florida software developer on February 6, 2019. The United States brought the case itself. The Federal Bureau of Investigation’s field office in Atlanta, Georgia provided significant investigative support.

What Does It Mean to Have a Certified EHR?

A certified EHR has passed the testing and certification required for specified capabilities under the applicable federal criteria. In Greenway’s case, the government alleged that the company obtained 2014 Edition certification for Prime Suite by concealing that the product did not fully meet those criteria.

As the Justice Department explained, the developer first has its product tested by an independent, accredited testing laboratory authorized by the Department of Health and Human Services. It then obtains and maintains certification from an independent, accredited certification body.

The government’s allegation was that Greenway modified its test-run software to make the certifier believe Prime Suite could use the required clinical vocabulary. For an engineering or quality employee, the meaningful comparison is between the capability demonstrated during testing and the capability the product actually supplied.

Why the Clinical Vocabulary Mattered

Standardized clinical terminology was supposed to support the exchange of patient information and the accuracy of electronic prescriptions. The government alleged that Prime Suite lacked the required terminology. That puts the alleged test manipulation inside the ordinary work of health care: moving a patient’s information between systems and communicating a prescription accurately.

We see the absurdity in a test that allegedly demonstrated the vocabulary while the product lacked it. The certification was supposed to establish that very capability.

What Is the EHR Incentive Program?

The Medicare and Medicaid EHR Incentive Program made payments available to eligible providers that adopted certified technology and met requirements for using it. Established under the American Recovery and Reinvestment Act of 2009, it connected the software vendor’s certification to the provider’s claim for public money.

Buying a certified product was part of that connection. The provider also had to meet use requirements. At certain times, those included giving patients clinical summaries after office visits. The software’s calculation of how often that happened could therefore affect whether the provider appeared to qualify for payment.

The Department of Health and Human Services’ inspector general’s June 2017 audit of Medicare incentive payments describes providers reporting their own data through the Centers for Medicare and Medicaid Services’ online system to attest that they met program requirements. A number generated inside an EHR could become part of a statement to the government. That is where Greenway’s separate measure-calculation allegation fits.

The Favorable Error in the 2011 Edition

The government alleged that an earlier Prime Suite version, certified to the 2011 Edition criteria, incorrectly calculated the percentage of office visits for which users distributed clinical summaries. According to the complaint as described by the Justice Department, Greenway knew about the error, and the calculation caused users to falsely attest that they qualified for incentive payments.

The government’s explanation of why the error remained is unusually direct:

The alleged result was that users received a qualifying calculation even though they had not met all the use requirements. We see a perverse incentive in that allegation: correcting the software would take away the favorable answer. A bug with a commercial upside.

What Are Some Examples of Kickbacks in Healthcare?

The Greenway case provides an EHR example: the government alleged that the company paid money and incentives to client providers to recommend Prime Suite to prospective customers. It alleged that those payments violated the Anti-Kickback Statute.

The Anti-Kickback Statute reaches payments intended to induce recommendations involving goods or services payable under federal health care programs. Greenway’s customer-recommendation allegation sat alongside the certification and calculation allegations in the same False Claims Act resolution.

For someone in sales or customer relations, this is the part of the matter that may be most recognizable. The question is what the provider was paid to recommend and how that recommendation helped sell Prime Suite.

A Government Case Without a Whistleblower Plaintiff

The United States filed the Greenway case without a whistleblower plaintiff, so the resolution carried no whistleblower reward. That distinguishes it from an EHR qui tam case, which begins with a whistleblower’s complaint.

The eClinicalWorks settlement announced in May 2017 totaled $155 million across the company and individual defendants, more than Greenway’s payment. A software technician who had worked at a municipal health agency brought that qui tam case, and the government joined it. The government alleged that eClinicalWorks programmed the drug codes used in certification testing directly into its software instead of providing the required ability to retrieve codes from a complete database.

The parallel is the gap between passing a test and supplying the capability the test was meant to establish. The distinction is who brought the case. The eClinicalWorks whistleblower worked outside the vendor, showing why customer-side knowledge of the software can matter. Greenway’s case came directly from the government.

What Greenway Had to Change for Customers

Greenway entered a five-year Corporate Integrity Agreement with HHS-OIG covering its electronic health records software.

An Independent Review Organization had to assess Greenway’s software quality control and compliance systems. It also had to review the company’s arrangements with health care providers for compliance with the Anti-Kickback Statute.

Greenway had to promptly notify customers of patient-safety issues. Its customer portal also had to maintain a comprehensive list of those issues and the steps users should take to reduce potential risks.

The agreement also gave Prime Suite customers three distinct options:

• Stay with Prime Suite. Obtain the latest versions at no additional charge.
• Move within Greenway. Migrate data to another Greenway-developed software product at no additional charge.
• Move to another vendor. Have Greenway transfer the data without penalties, service charges or other fees, except contractual amounts still owed for goods or services already provided.

What Evidence Is Needed to Report Fraud?

For the practices alleged in Greenway’s case, the useful evidence connects the tested product, the measure calculation or the paid recommendation to the company’s decisions and the federal payment. We work with insiders to understand those connections and build the case around what they know.

A release or quality employee may recognize the difference between what the certifier saw and what the product could do. Someone responsible for measures or customer support may know when the calculation problem became known and what happened to the proposed correction. A commercial employee or customer may understand the payment behind a product recommendation. Those are different views of the practices alleged here, and each can explain something the settlement headline leaves out.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers. The value of an insider’s account is its connection between what the company represented, what the software or sales arrangement actually did and who knew the difference.

You Know What the Product Could Actually Do

If you recognize a certification shortcut, a favorable calculation left unfixed or a paid customer recommendation, talk with our whistleblower experts about what you saw. We work with you to build your strongest EHR whistleblower case, bring in EHR fraud whistleblower lawyers who understand software certification and federal incentive payments, and stay with you through the case.