EHR Customer and Competitor Whistleblowers: Evidence Outside the Software Company

An EHR customer whistleblower can bring evidence of electronic health records fraud from outside the software company: false certification, paid recommendations or false government claims. The customer sees what the product does in practice. A competitor may see how the vendor buys recommendations or steers customers into a replacement system. If you work in clinical care, implementation or sales, your account can connect the product the vendor promises with the business it actually conducts.

Can a Whistleblower Report EHR Fraud?

Yes. EHR whistleblower cases have come from a municipal software technician, clinicians at a customer facility, a competitor’s salesperson and operators of a customer business. Their jobs put them close to different parts of the conduct: the live system, the clinical workflow, the recommendation and the sale.

The federal payment connection gives those observations their significance. Under the Medicare and Medicaid EHR Incentive Programs, also known as Meaningful Use, eligible providers received payments for adopting certified technology and meeting requirements for its use. The vendor cases below concerned allegations that software representations or sales arrangements caused customers to seek payments they should not have received.

The payment connection continues under different program names. The Centers for Medicare and Medicaid Services describes continuing Promoting Interoperability requirements for hospitals and within the Merit-Based Incentive Payment System for eligible clinicians. The Medicaid EHR incentive program has ended.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers. Our whistleblower experts build a case strategy around what customers and competitors know about the conduct behind those claims.

What a Customer Site Reveals

A nurse uses the clinical summary. An implementation specialist sees how records move between systems. Someone involved in purchasing hears the reference customer’s recommendation. Each has a view of the product or the sales arrangement that matters in the cases below.

The Vassar College thesis A Panacea or a Problem? Electronic Health Records and the Complicated Politics of Its Stakeholder Network, completed in 2022, draws on interviews with physicians and nurses, including nursing informatics professionals. It describes institutions and specialties customizing their EHRs around their workflows, making it harder to combine notes across different layouts.

The person who trains users or works through the daily workflow can explain which configuration was in use and what happened on the screen. In a certification case, that account gives the vendor’s technical representations something concrete to answer.

A Municipal Technician Behind a Certification Fraud Case

eClinicalWorks’ whistleblower was a software technician formerly employed by the New York City Division of Health Care Access and Improvement. The Justice Department joined his case and announced a combined $155 million settlement with the company and several employees in May 2017.

The government alleged that eClinicalWorks concealed missing capabilities from its certifying entity. Instead of building the ability to retrieve any drug code from a complete database, it allegedly typed the 16 drug codes needed for the certification test directly into the software. We see the alleged shortcut plainly: build for the test, leave the clinic with the gaps.

The government’s account also reached the daily work of a customer: inaccurate audit logs, diagnostic imaging orders that were not reliably recorded, drug interaction checks that did not reliably operate and failures to meet requirements for transferring patient data to another vendor. It alleged that those deficiencies caused false claims for federal incentive payments. Patients depended on the drug checks and orders the software allegedly failed to handle reliably.

Those are useful comparisons for a customer-side technician. The order entered, the action recorded and the data available for transfer are observable parts of a system. The test preparation and the representations made to the certifier are another part of the story. We connect those accounts rather than expecting a customer to arrive with the vendor’s source code.

The resolution also addressed the customer’s position after the sale. The company’s agreement with the Department of Health and Human Services’ Office of Inspector General required notice of safety issues, free updated software and an option to transfer data to another provider without penalties or service charges.

NextGen’s Customer Clinicians and the Certification Gap

NextGen Healthcare agreed to a $31 million settlement in July 2023. The whistleblowers were a registered nurse and a nurse practitioner using its EHR in their work for the South Carolina Department of Corrections. The government alleged that NextGen misrepresented software capabilities and paid customers to recommend its product.

The certification allegations concerned a temporary version of a separate product, the Knowledge Based Model. According to the government’s complaint, NextGen built functionality into that temporary product for certification testing without disclosing its use to the testing and certifying bodies. The software released to customers allegedly lacked required capabilities for recording vital signs, using standard medical vocabularies and creating complete clinical summaries.

The government’s complaint quotes a NextGen manager describing the approach:

We find the alleged priority hard to miss: pass the test, then struggle to deliver the functions customers needed. The complaint described employees discussing missing capabilities after certification and a dependence on auxiliary software that NextGen had concealed during testing. It alleged that users relying on the certification unknowingly made false attestations for incentive payments.

A nurse’s account of the clinical workflow and an internal discussion about certification answer different questions. Together, they can connect what the user experienced with what the vendor knew.

When the Reference Customer Gets Special Treatment

NextGen’s Premiere Reference Program allegedly paid customers to refer prospects and host site visits. According to the complaint, compensation depended on a resulting purchase, and reference customers often received extra services or faster technical support. Prospects allegedly were not told that the reference would be paid if they bought the product.

That arrangement makes the purchasing side of a customer site relevant too. The reference agreement, the support the host received and the sales-linked credit can explain why the demonstration looked so good. A prospect hears a customer’s experience. The government alleged that the vendor was paying for the recommendation behind it.

Customers and Competitors Saw the Sales Side

athenahealth’s cases included both a person working in business development and sales for a competitor and operators of a home-healthcare service that was an athenahealth client. The First Circuit’s account identifies those roles. They show why the outside witness may understand a sales channel as well as a software screen.

The company agreed to an $18.25 million settlement in January 2021 over alleged kickbacks used to generate sales of athenaClinicals. The government’s allegations covered lavish sporting and recreational trips, payments for customer leads and deals with competitors discontinuing their products. It alleged that these arrangements caused false claims for federal EHR incentive payments.

The conversion deals are particularly revealing. The government alleged that athenahealth paid exiting vendors according to the value and volume of customers they converted. In the arrangement with SOAPware, the complaint said:

The government further alleged that athenahealth obtained client lists before other vendors knew SOAPware planned to discontinue its offering. The companies allegedly worked on a migration solution before that announcement. Customers choosing other platforms reportedly had significant difficulty moving their data, according to the complaint.

The government alleged that an undisclosed payment sat behind the recommendation and the early migration work. The customer hearing the recommendation and the competitor seeing the conversion arrangement occupy different ends of the same transaction.

What Evidence Is Needed to Report Fraud?

We work with you to establish how the electronic health records software or sales arrangement connects to government claims and who knew how it worked. In the certification cases, the deployed version and its clinical output sit beside testing materials and internal discussions. In the referral cases, the recommendation sits beside the agreement, the compensation and the resulting sale.

Modernizing Medicine’s case, for example, came in part from a former vice president of product management. The government alleged that the software lacked required standard-vocabulary capabilities.

The government also alleged that Modernizing Medicine accepted kickbacks from Miraca Life Sciences to recommend its pathology services and worked with the lab to improperly donate EHR systems to providers to increase lab orders. For a customer, the software offer and the recommended lab were parts of the same alleged sales scheme. A product executive’s perspective reaches decisions inside the company, while a customer explains how those decisions reached the clinic.

Audit history adds another layer. In its December 2013 report on hospital EHR fraud safeguards, the inspector general described audit logs tracking access and changes through dates, times and user stamps. That history can explain an alteration the finished note does not show. In the eClinicalWorks case, accurate recording of user actions was itself among the capabilities the government challenged.

The Clinical Note and the Government Bill

A customer can also see the point where clinical documentation feeds a charge. Certification addresses specified product capabilities. EHR and billing modules may be sold together, with the note supplying information used for billing. The useful comparison follows the encounter, the resulting documentation and the claim it supported.

The inspector general’s report described how copying information without updating it could produce inaccurate records and inappropriate charges. It also described templates generating extensive documentation from a checkbox, potentially making services appear more comprehensive than they were. Someone who knows the clinical work can explain that gap. The configuration, the submitted bill and the decisions behind it carry the account further.

What If I Have Information About Fraudulent EHR Purchases or Programs?

We build your case around the connection between what the vendor sold, the incentives behind the sale and the government payments it generated. Confidentiality, patient information and contractual restrictions are issues we address with you and EHR fraud whistleblower lawyers as part of that work. Your familiarity with the clinic or the market gives us a concrete place to begin.

Your View of the Product Matters

Speak with our EHR whistleblower experts about the software, recommendation or migration deal you have seen. We build the case strategy with you, bring in EHR fraud whistleblower lawyers who understand software certification and health care payments, and stay beside you through the decisions ahead.