On May 31, 2017 the U.S. Department of Justice announced a massive settlement with eClinicalWorks (eCW), one of the nation’s largest EHR vendors whose products and services are used by over 100,000 physicians, including many allergists. The terms of the settlement have important implications for any physicians using eCW’s EHR.
Basis for the Settlement: the government contended that eCW along with its CEO, Chief Medical Officer, and Chief Operating Officer falsely obtained certification for the company’s EHR software by concealing areas of noncompliance. For example, the government alleged that eCW hardcoded into its software certain-prescribing codes that it knew the certification body would test. It also alleged that eCW’s software did not reliably perform drug interaction checks and failed to reliably record diagnostic imaging orders, among other things. As a result, the company caused the submission of false claims for federal incentive “meaningful use” payments by physicians who believed they were using certified technology. The action was brought by a whistleblower who will receive $30 million as part of the settlement. Although whistleblower actions are common in health care, this is the first one in the health information technology area and is sure to be a warning to other EHR vendors.
Rights of eCW’s Customers: As part of the settlement, eCW has entered into a Corporate Integrity Agreement with the Health and Human Services Office of Inspector General requiring it to notify customers of their right to two options:
- Under the Upgrade Option, eCW must provide customers with free upgrades, fixes and patches through the term of the customer’s software agreement.
- Under the Data Transfer Option, if requested, eCW must transfer all EHR data, at no charge, and in a commercially reasonable, structured format to a new vendor. This option must be exercised within one year of when the customer receives official notification from eCW. However, selecting this option does not preclude a customer from also selecting the Upgrade Option.
If you use eCW, be on the look-out for a notification which may come by email or regular mail notifying you of your rights under the settlement.
At this time, we are not aware of any efforts by the Centers for Medicare and Medicaid Services to recoup meaningful use payments to physicians based on this settlement. We believe such actions are very unlikely, but if we learn of any such efforts we will let you know.