U.S. District Judge Nathaniel M. Gorton granted $391,125.33 to a whistleblower this past week in the wake of a settlement agreement between the government and the electronic health record vendor athenahealth.  

In January 2021, the U.S. Department of Justice announced that athenahealth had agreed to pay $18.25 million to settle False Claims Act violation allegations. Now, the company is on the hook for additional hundreds of thousands of dollars in attorneys' fees.  

Athenahealth declined requests for comment.  

WHY IT MATTERS

According to court documents, in October 2017, Geordie Sanborn filed a qui tam lawsuit – which allows an individual, known as a "relator," to prosecute a lawsuit for the government and receive a reward – against athenahealth, accusing it of violating the False Claims Act and the federal anti-kickback statute.  

Two months later, two more relators did the same.  

The complaint focused on allegations around athenahealth's client referral program and other "gratuities and incentives" – including tickets to sporting events, casino chips, hotel accommodations and more – to sweeten sales of its EHR product.  

The government's settlement agreement, reached this past January, allowed relators to seek "reasonable expenses," costs and attorneys' fees from athenahealth in addition to their percentage of the claim payout.  

However, the FCA limits that entitlement to the first relator to file – meaning only Sanborn would get the funds. Sanborn's complaint included an additional allegation that the government did not act upon: that athenahealth's EHR software was not compliant with applicable federal certification criteria.   

Initially, Sanborn asked for $740,000. But the judge opted to halve that, based on the fact that he is not entitled to a fee award for the noncompliance claim.  

"Although both claims relate to Athena’s EHR technology, the AKS claim concerned its sale and marketing whereas the compliance claim was about performance," wrote Gorton in a court memorandum.  

THE LARGER TREND  

The federal government has pressed the gas pedal when it comes to fraud enforcement around the False Claims Act, signaling to EHR vendors in 2017 that it would crack down. 

That year, eClinicalWorks agreed to pay $155 million to resolve kickbacks allegations, with GreenWay Health settling to the tune of $57.25 million two years later. And in 2021, CareCloud agreed to fork over $3.8 million regarding allegations around its "Champions Program" marketing-referral initiative.  

ON THE RECORD  

"Athena and Sanborn agree that Sanborn is entitled to reasonable attorneys’ fees and costs as the first-to-file relator," wrote Morton. "They dispute, however, the reasonableness of the amount of claimed fees, costs and expenses, including those which pertain to the preparation of the portions of the complaint alleging EHR compliance violations."  

"There is undoubtedly some efficiency gained by the prosecution of two claims pertaining to the same company and the same technology, even if those claims are not substantially interconnected," he continued. "Moreover, Sanborn was successful in recovering a substantial sum of money for the government."

Kat Jercich is senior editor of Healthcare IT News.
Twitter: @kjercich
Email: kjercich@himss.org
Healthcare IT News is a HIMSS Media publication.