The US Department of Justice announced on 27 February that it reached a $145 million settlement with Practice Fusion on what DOJ termed “kickbacks from a major opioid company in exchange for utilizing its EHR software to influence physician prescribing of opioid pain medications”. Allscripts, which now owns Practice Fusion, will be paying out penalties of $25.4 million in criminal fines, $113.4 million to the Federal Government, and up to $5.2 million to individual states, as well as forfeiting criminal proceeds of nearly $1 million from the ‘kickback’. The specific charges relate to two felony charges related to the Anti-Kickback Statute (AKS) and for conspiring with its opioid company client to violate the AKS.
The opioid company is widely believed to be Purdue Pharmaceutical, manufacturers of Oxycontin, according to HISTalk. The high dudgeon generated in the DOJ press release is related to opioid prescriptions and physician usage which are and remain highly controversial. Apparently, Purdue wasn’t the only pharma company that benefited from this type of influence.
In this Editor’s analysis, ‘kickbacks’ is a legalism to prosecute under the AKC what marketers would term a sponsorship deal. Practice Fusion was from inception advertiser supported. What is different here from pop-up screen adverts is that Practice Fusion created sponsorship packages in which not only advertising was featured, but also clinical support decision (CDS) alerts were created, aimed at increasing prescription sales of companies’ products. In addition, Practice Fusion allowed companies to participate in the design of the CDS software. These sponsorships took place between 2014 and 2019. None of this is unusual in AdLand in general, but in pharma and healthcare which play by far stricter rules about marketing programs, this goes against the expectation (and regulation) that an EHR is unbiased.
Allscripts had ‘leaked’ this back in August on their Q2 investor call. Buried in the DOJ release after the opioid ire is the settlement of Practice Fusion’s violations of Office of the National Coordinator for Health Information Technology (ONC) regulations concerning the voluntary health IT certification program, and the Centers for Medicare & Medicaid Services (CMS) regulations around EHR incentive programs, presumably Meaningful Use certifications and payments. This was the origin of the earlier announcement of a $145 million settlement on Allscripts’ Q2 2019 investor call, which in retrospect strikes this Editor as a nice try at minimizing far more serious charges. [TTA 14 August] CDS favoring opioid prescription is far more disturbing.