Category: News Feeds

EHR company athenahealth will pay nearly $18.3 million to resolve allegations that it violated the False Claims Act, though the company denies any wrongdoing.

The vendor engaged in an illegal kickback scheme to increase sales for its EHR platform, athenaClinicals, the Department of Justice said on Thursday. Though athenahealth denies any wrongdoing, it agreed to settle.

The Justice Department claims the company conducted three marketing programs between 2014 and 2020 that violated the False Claims Act and the Anti-Kickback Statute. 

The first involved providing free tickets and amenities to prospective and existing customers for sporting, entertainment and recreational events. These included tickets to the Masters Tournament and the Kentucky Derby. The company also provided luxury accommodations, meals and alcohol, alleges the Justice Department.

Further, athenahealth allegedly paid kickbacks to existing customers through a “lead generation” program. Customers were paid when they referred new prospective clients to the company, the Justice Department claims. They received up to $3,000 for each new client that signed up for athenahealth services.

The Justice Department’s final allegation is that athenahealth entered into deals with vendors that were discontinuing their EHR technology offerings. These deals involved the vendors referring their clients to athenahealth and getting reimbursed based on the value and volume of practices that were converted into athenahealth clients.

The settlement also resolves allegations in two whistleblowers lawsuits. The share to be awarded to the whistleblowers has not yet been determined.

“Across the country, physicians rely on electronic health records software to provide vital patient data. Kickbacks corrupt the market for healthcare services and risk jeopardizing patient safety,” said U.S. Attorney Andrew E. Lelling, in the news release. “We will aggressively pursue organizations that fail to play by the rules; EHR companies are no exception.”

The EHR vendor maintains it is not guilty of the allegations.

“[The company] places the highest priority on compliance with all laws and regulations governing our industry,” said a company spokesperson, who declined to be named, in an email. “While we have full confidence in our robust compliance policies and programs, we agreed to this settlement — under which we admit no wrongdoing — to put this matter behind us and move forward with our critical work on behalf of patients and healthcare providers.”

Further, two of the marketing programs were discontinued before the Justice Department investigation took place because they were not efficient or cost-effective, and the third is in the process of being shut down, she said in a phone interview. The company claims that all three programs complied with guidance from the Department of Health and Human Services.

In 2020, the Justice Department said it collected $1.8 billion from healthcare companies under the False Claims Act, down from $2.6 billion in 2019. One of the largest recoveries last year pertained to health IT developer Practice Fusion Inc., which Allscripts, a competitor of anthenahealth’s, purchased in 2018. Practice Fusion paid the Justice Department $145 million to settle allegations that Purdue Pharma paid it to tweak its EHR software to increase opioid prescriptions.

Photo: Sarinyapinngam, Getty Images 

* The Supreme Court may soon decide if churchgoers have the right to sing indoors during the pandemic. This could be the plot of another sequel to Sister Act… [Vox]

* Donald Trump has named two additional lawyers who will defend him at his upcoming impeachment trial. [AP News]

* The general counsel of Coca-Cola is getting tough with law firms who do not promote diversity. [ABA Journal]

* A class action has been filed alleging that a smoked cheese brand was misleading since the company used artificial flavors instead of actual smoke. [National Law Review]

* A Peruvian lawyer was caught having sex during a virtual court hearing last week. The judge was not pleased. [New York Post]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

While appearing on Fox News to rail against the impeachment of Donald Trump, Marco Rubio made the demonstrably false claim that, “Only in the Third World do you see this habitual use of prosecutions of former leaders. You go through Latin America; virtually every immediate past president is under indictment or in jail.” But, even ignoring the difference between impeachment and criminal prosecutions, European countries (excluded from even the most racist definitions of the “Third World”) have prosecuted former leaders. What European country most recently convicted a former prime minister of fraud and misuse of funds in June of 2020?

Hint: He was sentenced to five years in prison, with three of them suspended. His sentence is under appeal.

See the answer on the next page.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

In the past four years, and especially in the past two months, our former president took many acts in defiance of our country’s laws. As the events of the past two months have indicated, many people feel that our president can act above the law. These events bring a series of questions to mind: What is the law? What should be the law? How important is it that we maintain the principle that no person is above the law?

The “law” now means something different depending on the individual. Is it an abstract concept? Does it include the disputes and the people involved? There are the judges, who make the decisions in the courts, and the arbitrators, who make the decisions in arbitrations. There are also the mediators who try to resolve disputes so that judges and arbitrators do not have to make decisions.

In the past two months, the judicial system in the United States has been bombarded with baseless suits trying to overturn the results of the votes by the majority in the election of our president. Whether the judge was a Republican or Democrat was irrelevant in the uniform rejection of the conspiracy theories urged by Donald Trump’s supporters.

However, the battle continues as 100 senators decide whether our former president committed crimes and misdemeanors that threatened the very existence of our democracy. There are also individuals who voted against bringing the second impeachment to trial; they argue that since Trump is no longer in office, there is no need for an impeachment trial. The other senators argue that this would give any president a license to commit wrongdoings during the final months in office — specifically the type of crimes contemplated by the Constitution as grounds to convict someone of impeachment. If given a free pass because these acts were permitted at the end of your term, you have successfully acted above the law.

The law has additional components besides the law as set forth in the Constitution — a particular statute or regulation interpreting that statute. It requires a dispute. It requires advocates for each side of the dispute. As practicing lawyers, we are only the most visible part of the group of persons who present arguments to a decision-maker on what the law should be to resolve that dispute.

The final act in determining what the law is occurs in the courtroom. The judges are at the apex. There are magistrates, law clerks and assistants, as well as court personnel directly aiding the judge. There are the numerous clerks and assistants in the court system that also help the general public. Additionally, there are the people who work for the law publishing and research companies to prepare and digest the cited cases for publication. These publications assist the courts and the lawyers when presenting why the law and the particular facts support their client’s position. Finally, there are the numerous persons involved in the legal service industry who are tasked with servicing the law and assisting the lawyers. These people include court reporters, video operators, and translators — to name a few.

One overlooked component of the law are the litigants itself. In the criminal and regulatory context, it is the government that is prosecuting a company or an individual for alleged wrongdoing. In the civil context, there is the party suing and a party being sued. There is typically a genuine dispute. However, that is not always the case.

In a recent book by James Zirin, entitled “Plaintiff in Chief,” he shows how Trump has used “the law” in more than 3,500 cases as a tool to not pay numerous companies and persons who provided services to his entities or as an offensive weapon to harm his enemies. In reading that book a few years ago, it was clear to see how he, with personal immunity in office, would continue to misuse the law for his own personal benefit. However, in the great majority of cases, there is a legitimate dispute that needs to be resolved in our courts. It is far better than the alternative.

The uniform setbacks to the former president’s numerous attacks on the electoral process have reconfirmed the concept in our court system that no one is above the law. The Senate is the court for impeachment of a president or a high-ranking governmental official. Hopefully, it will apply the law to the facts as intended rather than to avoid the process and have the senators rule on the evidence. If it fails to do so, these senators will again be acting above the law.

When we adopted this title for our weekly article, it was intended as a vehicle to educate our clients and others about various aspects of the law. We had no idea that the term “above the law” would have the meaning it now has as a result of one individual — the former president of our country. It is time to reaffirm the principle that no one is above the law.

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Charles Hecht is an entrepreneurial lawyer who had his own firm for 39 years and recently joined Balestriere Fariello as a partner. He specializes in innovative solutions to complex litigation, arbitration, and securities transactions. He values teamwork, which is one of the reasons why he joined a New York City boutique law firm. He and his colleagues represent domestic and international clients in litigation, arbitration, investigations by governmental agencies, and securities transactions. You can reach him via email at charles.hecht@balestrierefariello.com.

It all started out well enough. The Equality and Human Rights Commission, a U.K. government office charged with the promotion and enforcement of equality and non-discrimination laws, sent out a tweet about a student who was told her natural hair worn in an afro style violated the school’s uniform policy. The EHRC got involved in the matter and the school did away with its policy. The tweet contained the message, “The Equality Act 2010 is clear; no one should face discrimination because of their race,” and contained a short video about the case.

Sweet, isn’t it? But then Jon Holbrook, of Cornerstone Barristers, just *had* to respond. His tweet, in the most British way possible, employs racist tropes about students who want to wear their hair naturally.

Holbrook told Legal Cheek, that despite the uproar over his insensitive tweet, he will not delete it:

 “Liberal democracies are premised on free speech and we curtail it at our peril. Through my articles and tweets I have for many years criticised laws that enable individual rights to trump collective interests. Many provisions of the Equality Act do this, which is why I criticise them in my political capacity.”

Holbrook continued:
“Some legal activists of the left would prefer to silence their opponents. They are unable to engage in reasoned argument and they seek a legal profession of practitioners who conform to their own woke opinions.
“My political views are never expressed as a member of Cornerstone Barristers, because they have nothing to do with my work as a member. My day job is concerned with how the law is, my political interest is concerned with how it should be. Many of my critics seem unable to grasp this distinction. Others are simply motivated by a loathing for conservative and populist opinions. Free speech must prevail over cancel culture.”

Sure, you *can* say whatever awful opinions you have, but that doesn’t mean you *should* do it. And it certainly doesn’t mean others won’t [should] judge you for holding such a willfully ignorant and harmful viewpoint. He’s saying a youth is bad-tempered and argumentative simple for wanting to wear her hair naturally. That has all sorts of negative racial stereotypes built in.

And naturally, as a result, colleagues — including his own chambers — are trying to distances themselves from Holbrook.

In a statement issued on Saturday, Cornerstone Barristers said it became aware of the tweet late on Friday. “We want to make it very clear that Cornerstone Barristers repudiates the contents of the tweet and all that it insinuates,” the statement read.

Now, joint heads of chambers, Philip Coppel QC and Tom Cosgrove QC, said they “reiterate that repudiation”.

In a joint statement, Coppel and Cosgrove told Legal Cheek, “Mr Holbrook was asked both on Friday, 22 January and again on Saturday, 23 January to delete the tweet immediately and permanently. Mr Holbrook is refusing to do so. The Board of Cornerstone Barristers is dealing with the matter.”

Their statement continued:

“To be clear: this matter is being taken very seriously. The contents of this tweet are contrary to the views of Cornerstone Barristers. We unequivocally condemn discrimination in all of its forms and are proud of our record as a diverse chambers which promotes social mobility at the bar.”

And that’s not the end of the — completely deserved — pile on:

Leslie Thomas QC of Garden Court Chambers wrote of his former colleague, “Jon, I can’t believe you sent this tweet, what happened to you? I was once proud to have you as a colleague at Garden Court fighting for the rights of others versus rogue landlords in our younger days. This tweet is just wrong. [It] makes you unrecognisable to me now which [is] why I call it out.”

David Turner QC of 4 New Square described it as “the most shameful tweet” he had ever seen from a barrister, while Alexandra Wilson of 5 St Andrew’s hill said, “I’m embarrassed to be in the same profession as someone like this”.

Wilson, a vocal advocate for diversity at the bar, continued: “The truth is, he should be embarrassed. This tweet has remained up for days and still hasn’t been deleted. Stroppy? For wanting to go to school with her natural hair? It’s really frustrating that so many of us are trying to improve public perception of our profession and people like this completely undermine that.”

Meanwhile, Becky Agates of Foregate Chambers wrote: “I’ve sat here staring at the screen… unable to write… you’re a member of my profession… a profession I love and respect… yet you feel safe and comfortable tweeting something like this… what is wrong with you (apart from the obvious)… do the right thing, take it down.”

At least Holbrook is no longer hiding his problematic worldview, and those who choose to work with him now know exactly what they’re walking into.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

I do not believe that was Ruth. No. I don’t think so.

— Rep. Marjorie Taylor Greene, a known conspiracy theorist, in response to a caller during a February 26, 2019, appearance on the pro-Trump website UniteAmericaFirst.com. According to a report from Media Matters, during her appearance, a caller asked Greene if she’d seen “the picture” of Justice Ruth Bader Ginsburg at “the airport” (i.e., National Airport) “walking straight up right like it’s a whole new person” and asked her if she believed “that is Ruth.” Before Greene could respond, host Will Johnson jumped in, saying, “It’s almost like a body double like Hillary Clinton.” Greene took office on January 3, 2021. Click here to see the video of her appearance.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

After learning that Donald Trump had hired Butch Bowers of South Carolina to build out his core impeachment defense team, we marveled that the president who spent the last four years surrounding himself with Matt Whitaker, Jenna “the Doctor” Ellis, and, dear heavens, Rudy Giuliani, had finally managed to snag himself a lawyer who seemed competent. Maybe things had turned around for Team Trump’s personnel management?

Fast forward a week…

The Huffington Post headline focuses on Greg Harris, one of the four core members of the Trump defense team. In 1989, while working as an assistant solicitor, Harris dismissed a string of Black jurors over the course of a pair of trials. The law requires an attorney doing such a thing to provide a race-neutral reason for the dismissal. Harris, apparently, decided to step outside the usual options on the racist pretext Bingo card:

In one instance, Harris struck a 43-year-old Black juror he claimed walked slow, talked low and was somewhat aged. In another instance, Harris told the trial judge he struck another potential juror because he was unemployed and “seemed disinterested” during jury selection. But he also added in a racial stereotype.

“I watched him as he walked from the jury panel to the microphone and I have noted that he ― he shucked and jived is what I had. That’s just my analysis of the way he walked up here,” Harris told the court.

Remarkably, or maybe not remarkably for South Carolina in the 1980s, the trial court accepted this as neutral, making you wonder exactly how far down the racist stereotype rabbit hole Harris could have gone before it would’ve raised any flags. And we all know South Carolina is all about never lowering flags!

Thankfully, the South Carolina Supreme Court saw some problems here.

The trial court failed to inquire into or comment on the prosecutor’s explanation that the juror was struck because he “shucked and jived.” The use of this racial stereotype is evidence of the prosecutor’s subjective intent to discriminate and clearly violates the mandates of Batson.

Speaking with the lawyer who brought the case against Harris, Philip Mace, HuffPo relays:

“It was not a difficult argument to make,” Mace said. “I came out of it with a little paper certificate from the ACLU, and Greg got a promotion to assistant United States attorney.”

There really is nothing but an upward career trajectory for this sort of behavior within one of the two major political parties in this country. Or maybe both parties — most of the spring was spent hyping up Andrew Cuomo’s liberal bona fides and casually suggesting higher office for him and, um… does anyone else remember 2008?

I wonder if anyone told Harris that he can’t exclude the Black senators?

Trump Impeachment Lawyer Removed A Black Juror He Said ‘Shucked And Jived’ [Huffington Post]

Earlier: Trump Hires Impeachment Lawyer Who Is… Competent???

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Well, this seems like a gross miscarriage of justice, but here we are.

Five years ago in Oregon, Pedro Sanchez was convicted in a hammer attack on Heather Fawcett, but it was a 10-2 jury verdict. So, because of the Supreme Court case saying that unanimous jury verdicts are required in serious criminal cases, the Oregon Supreme Court overturned the conviction and a retrial was scheduled. All of which checks out.

But of course, we are also living through a global pandemic. And that’s thrown a wrench into just about everything, including the criminal justice system.

Fawcett wants to wear a face mask while testifying, because you know, COVID-19 is RAGING across the country and she lives with her elderly parents who aren’t in good health. But Sanchez’s attorney argued that his right to confront his accuser required Fawcett testify without a mask, nevermind that she’d previously testified against him sans mask in the before times. Judge Jennifer Chapman ordered Fawcett to testify with a not-super-effective-but-better-than-nothing-I-guess face shield. Fawcett was not okay with this option and asked about using a mask with a clear window over her mouth. However, the judge responded that though this option had been ordered, they would not arrive in time for the trial.

Since the only other witnesses to the alleged attack, Fawcett’s then-boyfriend and his brother, have since passed, the case against Sanchez was dismissed.

It isn’t a normative statement on the guilt or innocence of Sanchez to say this seems like a wild result. And, unsurprisingly, Fawcett feels the same way, as she told the Oregonian:

“It’s the second time I’m going through this trial. And now you’re gonna tell me I have to expose my friends and my family and people that I care about and myself to this virus?”

“I don’t understand why I have to be put at risk and why I have to choose putting myself at risk in this way in order to get justice. [And] choose being able to testify on my own behalf or letting him get off and have the other charges dropped just because I want to war a mask to protect myself.”

And victim’s rights advocates are concerned about the larger implications for others around the state. Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said, “I’m concerned that courts are not granting victims their rights with the same priority that they are for defendants due to COVID-19.”

With the slow vaccine rollout and new strains of COVID popping up around the globe, it doesn’t look like masks are going away anytime soon. There has to be a better answer than a dichotomy between COVID safety or justice.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).