Cybernetic Opioid Pushers: EHR Vendor Practice Fusion to Pay $145 Million to Resolve Criminal and Civil Investigations

Yves here. Even though we linked to this story earlier in the week about the way a software company Practice Fusion actively enabled opioid abuse, we’re highlighting it again because the details matter, and not just the sorry fact that no one is going to jail.

Many commentors defend the use of electronic health records (EHR), not understanding that the way they’ve been implemented in the US makes them a danger to patient health. We are not being hyperbolic; a respected industry body, ECRI, deemed EHRs to be the biggest risk to patient health in large medical organizations (meaning hospital systems) in 2014.

One problem is the systems are designed for billing, not for patient care. A second is that they often require the doctor to fill them out in the patient’s presence, distracting the physician from his exam.

This post demonstrates a third risk, and one I’d never heard about. Some (many?) EHRs recommend treatment protocols based on doctor inputs. In this case, Practice Fusion had sought bribes from opioid makers in return for designing prompts to recommend opioids first on the list of suggested treatments, irrespective of whether they were appropriate.

Note that this “decision support” clearly succeeds in influencing doctor behavior. It can also serve to enforce new treatment guidelines, which in the US routinely pathologize test results that are considered normal in other countries. For instance, earlier this week, we featured a story from RTE which discussed how Irish doctors disagreed with new US guidelines that lowered the threshold for what is considered to be high blood pressure. The article pointed out that the new level was based on clinician opinion, not on any data, and would have the effect of more people being prescribed medications to lower their blood pressure.

Even worse, with the practice of medicine in the US increasingly corporatized, it is not hard to imagine that doctors that attempted to use their own judgment and ignored the new guidelines (and decision support prompts to pull out their Rx pad) could be sanctioned by management.

By Informatics MD, a medical doctor, and medical informatics professional via NIH-sponsored postdoctoral fellowship at Yale School of Medicine. Expertise in clinical IT design, implementation, refinement to meet clinician needs, and remediation of HIT projects in difficulty in both hospitals and the pharmaceutical industry. Former Director of Scientific Information Resources and The Merck Index (of chemicals, drugs, and biologicals) at Merck Research Labs. Faculty, Drexel University, College of Information Science and Technology, Philadelphia, PA.. Originally published at Health Care Renewal

Considering the devastating and deadly opioid problems in this country, this news release from DOJ describes particularly despicable behavior from an EHR vendor and pharmas.

These problems are likely more widespread, but this EHR company got caught.

The company admitted that it solicited and received kickbacks from a major opioid company in exchange for utilizing its EHR software to influence physician prescribing of opioid pain medications, via “decision support” routines specifically designed by the drug company to increase drug company profits.

The DOJ reports that in exchange for “sponsorship” paymentsfrom pharmaceutical companies, Practice Fusion allowed the companies to influence the development and implementation of the CDS (clinical decision support) alerts in ways aimed at increasing sales of the companies’ products.  Practice Fusion allegedly permitted pharmaceutical companies to participate in designing the CDS alert, including selecting the guidelines used to develop the alerts, setting the criteria that would determine when a healthcare provider received an alert, and in some cases, even drafting the language used in the alert itselfThe CDS alerts that Practice Fusion agreed to implement did not always reflect accepted medical standards.

This story could certainly help explain why I could never get involved in EHR initiatives in pharma, despite having been at Merck in a science-support capacity, but seeking EHR involvement.  I had completed a Yale Medical Informatics postdoc and then faculty period authoring EHRs domestically and for a foreign country, and then had a period as a CMIO in Delaware. Yet, my many pharma applications over many years afterwards for EHR-related positions were mostly ignored.
The reason behind that shutout could likely be that I was known as being exceptionally honest, if only in part for my candid writing on EHR problems first on AOL 1999-2004, then at Drexel University and at this blog, at a time when the pundits and hyper-enthusiasts were pushing the technology uncritically and relentlessly.

Indeed, I would never have tolerated the types of conspiracy (DOJ’s word) between EHR companies and pharma that are described in this DOJ release to help push drugs, any drugs – let alone opioids.

To make matters worse, this vendor is also described as cheating on the HHS EHR “certification” process.  The company is described as concealing from the certifying entity, known as an ONC-Authorized Certification Body (ATCB), that the EHR software did not comply with all of the applicable requirements for certification.

Apparently, no defendants were jailed.

I am posting the DOJ release in its entirety.  It is quite comprehensive, and I have nothing to add.

https://www.justice.gov/opa/pr/electronic-health-records-vendor-pay-145-million-resolve-criminal-and-civil-investigations-0

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, January 27, 2020

Electronic Health Records Vendor to Pay $145 Million to Resolve Criminal and Civil Investigations

Practice Fusion Inc. Admits to Kickback Scheme Aimed at Increasing Opioid Prescriptions

Practice Fusion Inc. (Practice Fusion), a San Francisco-based health information technology developer, will pay $145 million to resolve criminal and civil investigations relating to its electronic health records (EHR) software, the Department of Justice announced today.

As part of the criminal resolution, Practice Fusion admits that it solicited and received kickbacks from a major opioid company in exchange for utilizing its EHR software to influence physician prescribing of opioid pain medications.  Practice Fusion has executed a deferred prosecution agreement and agreed to pay over $26 million in criminal fines and forfeiture.  In separate civil settlements, Practice Fusion has agreed to pay a total of approximately $118.6 million to the federal government and states to resolve allegations that it accepted kickbacks from the opioid company and other pharmaceutical companies and also caused its users to submit false claims for federal incentive payments by misrepresenting the capabilities of its EHR software.

“Across the country, physicians rely on electronic health records software to provide vital patient data and unbiased medical information during critical encounters with patients,” said Principal Deputy Assistant Attorney General Ethan Davis of the Department of Justice’s Civil Division.  “Kickbacks from drug companies to software vendors that are designed to improperly influence the physician-patient relationship are unacceptable.  When a software vendor claims to be providing unbiased medical information – especially information relating to the prescription of opioids – we expect honesty and candor to the physicians making treatment decisions based on that information.”
The resolution announced today addresses allegations that Practice Fusion extracted unlawful kickbacks from pharmaceutical companies in exchange for implementing clinical decision support (CDS) alerts in its EHR software designed to increase prescriptions for their drug products.

Specifically, in exchange for “sponsorship” payments from pharmaceutical companies, Practice Fusion allowed the companies to influence the development and implementation of the CDS alerts in ways aimed at increasing sales of the companies’ products.  Practice Fusion allegedly permitted pharmaceutical companies to participate in designing the CDS alert, including selecting the guidelines used to develop the alerts, setting the criteria that would determine when a healthcare provider received an alert, and in some cases, even drafting the language used in the alert itself.  The CDS alerts that Practice Fusion agreed to implement did not always reflect accepted medical standards.  In discussions with pharmaceutical companies, Practice Fusion touted the anticipated financial benefit to the pharmaceutical companies from increased sales of pharmaceutical products that would result from the CDS alerts.  Between 2014 and 2019, health care providers using Practice Fusion’s EHR software wrote numerous prescriptions after receiving CDS alerts that pharmaceutical companies participated in designing.

Practice Fusion executed a deferred prosecution agreement with the U.S. Attorney’s Office for the District of Vermont based on its solicitation and receipt of kickbacks from a major opioid company to arrange for an increase in prescriptions of extended release opioids by healthcare providers who used Practice Fusion’s EHR software.  As detailed in the criminal Information made public today, Practice Fusion solicited a payment of nearly $1 million from the opioid company to create a CDS alert that would cause doctors to prescribe more extended release opioids.  That payment was financed by the opioid company’s marketing department, and the CDS was designed with input from the marketing department.  Practice Fusion and the opioid company entered the CDS sponsorship because they believed that the CDS would influence doctors’ prescriptions of extended release opioids.  In marketing the “pain” CDS alert, Practice Fusion touted that it would result in a favorable return on investment for the opioid company based on doctors prescribing more opioids.

“Practice Fusion’s conduct is abhorrent.  During the height of the opioid crisis, the company took a million-dollar kickback to allow an opioid company to inject itself in the sacred doctor-patient relationship so that it could peddle even more of its highly addictive and dangerous opioids,” said Christina E. Nolan, U.S. Attorney for the District of Vermont.  “The companies illegally conspired to allow the drug company to have its thumb on the scale at precisely the moment a doctor was making incredibly intimate, personal, and important decisions about a patient’s medical care, including the need for pain medication and prescription amounts.  This recovery is commensurate to the nature of Practice Fusion’s misconduct, represents the largest criminal fine in the history of this District, and requires Practice Fusion to admit to its wrongs.  It is another example of pioneering healthcare fraud enforcement by the talented Assistant U.S. Attorneys and staff of this U.S. Attorney’s Office, working with their partners in law enforcement.  We cannot — and will not — tolerate technology companies influencing patient treatment merely because a pharmaceutical company provided a kickback.”

The criminal Information charges Practice Fusion with two felony counts for violating the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b(b)(1), and for conspiring with its opioid company client to violate the AKS, 18 U.S.C. § 371.  This case is the first ever criminal action against an EHR vendor and the unique Deferred Prosecution Agreement imposes stringent requirements on Practice Fusion to ensure acceptance of responsibility and transparency as to its underlying conduct, and to invest heavily in compliance overhauls and an independent oversight organization.  The Deferred Prosecution Agreement requires Practice Fusion to pay a criminal fine of $25,398,300 and forfeit criminal proceeds of nearly $1 million.  In addition, the company will cooperate in any ongoing investigations of the kickback arrangement and report any evidence of kickback violations by any other EHR vendors.  To ensure transparency and public awareness of the company’s activities while the nation continues to battle an epidemic of opioid addiction, the Deferred Prosecution Agreement requires Practice Fusion to make documents relating to its unlawful conduct available to the public through a website.  Additionally, the Deferred Prosecution Agreement mandates that Practice Fusion retain an independent oversight organization that is required to review and approve any sponsored CDS before Practice Fusion may implement the CDS, and create a comprehensive compliance program designed to ensure such abuses are not repeated.

The civil settlement with the United States resolves Practice Fusion’s civil liability arising from the submission of false claims to federal healthcare programs tainted by the kickback arrangement between Practice Fusion and the opioid company.  It also resolves allegations of kickbacks relating to thirteen other CDS arrangements where Practice Fusion agreed with pharmaceutical companies to implement CDS alerts intended to increase sales of their products.  The $118.6 million settlement amount includes approximately $113.4 million to the federal government and up to $5.2 million to states that opt to participate in separate state agreements.

“Prescription decisions should be based on accurate data regarding a patient’s medical needs, untainted by corrupt schemes and illegal kickbacks,” said U. S. Attorney David L. Anderson of the Northern District of California.  “In deciding what is best for patients, electronic health records software is an important tool for care providers.  It is critically important that technology companies do not cheat when certifying that software.”

In addition to the kickback allegations, the civil settlement with the United States resolves allegations relating to two intersecting Department of Health and Human Services (HHS) programs, one at the Office of the National Coordinator for Health Information Technology (ONC) that regulates the voluntary health IT certification program, and one at the Centers for Medicare & Medicaid Services that oversees EHR incentive programs.  Specifically, the United States alleged that Practice Fusion falsely obtained ONC certification for several versions of its EHR software by concealing from its certifying entity, known as an ONC-Authorized Certification Body, that the EHR software did not comply with all of the applicable requirements for certification.  ONC’s certification criteria were designed to promote enhanced functionality, utility, and security of health information technology, and access to patient medical information across the care continuum.  HHS implemented the certification criteria for EHR software in multiple stages, known as editions.  To be certified under the 2014 Edition certification criteria, EHR software was required to allow users to electronically create a set of standardized export summaries for all patients.  When Practice Fusion sought certification of this 2014 Edition criteria, Practice Fusion falsely represented to the certifying body that its software met this data portability requirement, when several versions of its software did not.  The civil settlement resolves allegations that, at the time these versions of Practice Fusion’s software were certified, its software was unable to permit a user to create a set of standardized export summaries.  Additionally, after obtaining certification of the 2014 Edition criteria, Practice Fusion disabled access to this feature altogether.  Instead, Practice Fusion required users to contact it separately to request export of this critical patient data.

In addition to failing to satisfy the data portability requirement, Practice Fusion’s software allegedly did not incorporate standardized vocabularies as required for certification.  The United States alleged that by fraudulently obtaining certification for its products, Practice Fusion knowingly caused eligible healthcare providers who used certain versions of its 2014 Edition EHR software to falsely attest to compliance with HHS requirements necessary to receive incentive payments from Medicare during the reporting periods for 2014 through 2016 and from Medicaid during the reporting periods for 2014 through 2017.

“As new technologies continue to develop and evolve, so too do new and innovative fraud schemes,” said Shimon R. Richmond, Assistant Inspector General for Investigations of the U.S. Department of Health and Human Services. “We will continue to be vigilant in detecting and investigating these schemes in order to protect the safety of patients in federal health programs and to ensure the appropriate use of electronic health records in providing their care.”

“Today’s announcement shows that Practice Fusion exploited technology to profit at the expense of a vulnerable population – patients seeking medical advice,” said Timothy M. Dunham, Special Agent in Charge of the FBI’s Washington Field Office, Criminal Division.  “The FBI is committed to working with our partners to bring to justice the perpetrators of healthcare fraud in all its forms, especially one that fans the flames of the already rampant opioid epidemic.”

The U.S. Attorney’s Office for the District of Vermont handled the criminal investigation and resolution.  The civil investigation was jointly handled by the Civil Division’s Commercial Litigation Branch and the U.S. Attorneys’ Offices for the District of Vermont and the Northern District of California.  The investigation was supported by the HHS Office of Inspector General and multiple HHS agencies and components.  The FBI’s field office in Washington, DC, also provided significant investigative support.

Except for the conduct admitted in connection with the criminal resolution, the civil claims resolved by the settlement are allegations only, and there has been no determination of liability as to such civil claims.

Print Friendly, PDF & Email

17 comments

  1. Brooklin Bridge

    Practice Fusion falsely represented to the certifying body that its software met this data portability requirement, when several versions of its software did not.

    No quibble on fudging certification being rotten, but one wonders; isn’t it the function of the “certifying body” to catch exactly this kind of failure in the software and not simply to accept what the mfg. says? What is the responsibility of the certifying body? Can they “test” one version for compliance and then bless others sight unseen or without verification?

    Reply
    1. Brooklin Bridge

      Adding that the following is suggestive of an answer to my question.

      “As new technologies continue to develop and evolve, so too do new and innovative fraud schemes,” said Shimon R. Richmond, Assistant Inspector General for Investigations of the U.S. Department of Health and Human Services.

      Reply
    2. Brooklin Bridge

      Adding that the fraud scheme may have been harder to detect, particularly at point of use, than the description suggests.

      Reply
  2. carl

    “An opioid company”? What, it’s a secret? Why isn’t this “opioid company” going to jail? Never mind, I know the answer to that one.

    Reply
  3. MedicalQuack

    As I’ve been saying for years…and I wrote an EMR in the early days before the government involvement…”its so easy to cheat with code,so doggone easy, so easy, yeah so doggone easy, so easy”..

    When you write the software and lock it up in a compiler, only you know what goes on at the back end and when bad queries float their way up to the front ends where every one is clicking then folks get an opportunity to find some cheating code, it’s everywhere. I’ve written quite a bit about big pharma and their secret scoring predictions of whether or not you will take your meds, they all do it, was created by Ingenix in 2010 to run with Express Scripts. It’s bad stuff and then they sell those scores to FICO. All FICO needs is your name and address and they can score you on predicting if you will take your meds or not.

    On the the alerts in Practice Fusion, don’t get too wrapped up in people being harmed as most doctors ignore alerts put in the EHR systems, and remember how Dr. Oz was such a big fan of Practice Fusion? It was free and we all knew when the system came it that the drug ads would catch in some shape or form down the road…folks that write healthcare code just sat on the sidelines and watched to see how far it would go.

    There’s a story out there about the CIO of Cedars who got rich with some EHR alert windows and it’s a total joke using the ABIM “choosing wisely” rhetoric. Most of the doctors ignored those alerts but the CIO was able to get financed and rolled by United Healthcare for all his efforts and then he sold this little entity called Stanson Health (a bunch of algo add ins for EHRs) and became a millionaire..quite the story, read it.

    https://www.ajmc.com/press-release/cedarssinaioptum-study-patients-do-better-when-physicians-follow-computerized-alerts

    Be sure and catch all the disclosures, so this by comparison makes the Practice Fusion story look minimal and there’s also the coupon biz for drugs that goes on as well that dupes doctors into an electronic coupon that goes straight to the pharmacy electronically and PBM snatch scripts from each other this way, all RX discounts are paid for by PBMs, if you were not aware of that end of things.

    Reply
    1. Bobby Gladd

      Hi,

      I am well aware of your work.

      When I was in the “Meaningless Misuse” program, I only had a couple of docs on PF (about half of my caseload was eCW). I really disliked it. All the major vendors gave us REC staff “sandbox accounts” for kicking the WKFL tires. I found it simplistic and clunky.

      This scandal doesn’t surprise me. eCW got whacked for fraud as well.

      It’s not the digitech per se; it’s the business paradigm. Nothing much is going to change materially. Too much money at stake.

      Reply
    2. JBird4049

      So monopolistic corporations, aka drug cartels, sell billing software gives “advice” to dealers doctors and marks patients; these programs use hidden coding to determine secret metrics with unverifiable results; this, at least partly private, personal, medical information is then sold to credit agencies that can use it to determine our FICO scores; the scores that often determines our lives. Again, ostensibly helping to supposedly determine my health and future employment opportunities with unverifiable processes and results that are do guaranteed profit to the vendors.

      Well, hell. There is nothing wrong with this. No, siree Bob! Pardon me, I need to await my barcoding and chipping. Maybe I can have my new chip paired with my cat’s chip as she seems to already be my owner. Until the great Capitalist Tech Singularity comes to claim us all, that is.

      Reply
  4. XXYY

    Practice Fusion executed a deferred prosecution agreement with the U.S. Attorney’s Office for the District of Vermont based on its solicitation and receipt of kickbacks from a major opioid company … The criminal Information charges Practice Fusion with two felony counts for violating the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b(b)(1), and for conspiring with its opioid company client to violate the AKS, 18 U.S.C. § 371.

    While I appreciate the DOJ going after this at all, and also mandating a fine that’s many times the ill-gotten gain and not just a cost-of-doing-business kind of thing, why is no one going to jail here? Two felonies were admittedly committed by employees of Practice Fusion.

    We routinely jail people for smoking a joint or stealing a pizza or jumping a turnstile, so rigging a medical system to over- and mis-prescribe dangerous drugs in exchange for $1 million seems well within the spectrum of jailable offenses in today’s United States.

    More importantly, every time corporate offenses are settled with a corporate fine, corporate executives learn the lesson that they have complete personal immunity from anything they do as employees. Giving offenders literal get-out-of-jail-free cards is a sure way to ensure future corporate crimes.

    As we have been seeing.

    Reply
  5. Bob

    The Rule of Law is dead, dead, dead.
    The Rule of Law exists only in the young formative minds of first semester law students and old, fat, white men who peer out from their ivory towers through smudged rose colored glasses.

    Ordinary people know that the law is a disaster. That local police routinely arrest, taze, beat, and incarcerate citizens for the most minor of crimes. Or no crime at all. And it is common place for local police to rob citizens at gunpoint under the guise of confiscating drug money. This is commonplace in Spartanburg, SC. Some states even use the Click it or Ticket to raise funds to balance the state budget. And some folks particularly those folks of color know that to travel through some states is to risk life and liberty.

    Sorry folks it is over. We are at the mercy of forces who seek to enslave us with drugs and money.

    Reply
    1. flora

      adding: farther down the chain, at the pharmacy level, too many pharmacies have been rolled-up into corporate near-monopolies that gut the pharmacy staffing. This leads to burn out, not enough time to really check the script for Dr. error, and even mis-filled precriptions. Check the boards about CVS, Walgreens, and other near-monopoly chain pharmacies.

      Reply
  6. Jeremy Grimm

    I checked out Practice Fusion at Wikipedia and run across another fun-fact about this company and its management:
    “However, in 2018 Practice Fusion was sold to Allscripts for only $100 million. While its ordinary 200 employees and common stockholders made no profit or lost money, managers made millions in profit from a pre-arranged carve-out.”
    [https://en.wikipedia.org/wiki/Practice_Fusion]

    Reply
    1. Jeremy Grimm

      I couldn’t stop wondering who Practice Fusion has working for them right now. I suppose the management must have a separate entrance and exit to their building — or offices off-site. They probably enter and leave as a group accompanied by a few well armed heavies. I would expect Practice Fusion would have become famous on the local grapevine. They probably had to hire a bunch of out-of-state fresh-outs and fill in the rest with contractors from TATA.

      I should probably add another line from the Wiki page — “The company has been charged a $145 million fine, the largest criminal fine in Vermont’s history.”

      Reply

Leave a Reply

Your email address will not be published. Required fields are marked *