There has been quite a bit of reader feedback about my recent Curbside Consult addressing the ECW settlement. Several readers agreed with my assertion that multiple vendors have gamed the certification process, with one mentioning “extraordinary actions” taken to pass the testing, but that the product was “replaced by corrected code before the production code was released.” Given the way testing occurs, I bet that type of maneuver occurs more often than we’d like. Technically that would be fraud, regardless of how they try to mitigate it. Unfortunately, other vendors haven’t been caught (yet) and/or didn’t allow the products of their deception to go into general release. Hopefully those companies are on notice and will toe the line.
Other readers called for zero tolerance for ECW and other vendors who cheat, including jail time or outright closure of the company. Some felt I was soft on ECW, even “tender.” Let me go on record as saying what they did was despicable – however, I’m a firm believer in the American justice system and we have a couple of things called the law and due process. Whether you think entering into a settlement is tantamount to pleading guilty, there has not been an admission of guilt and no criminal action has been filed that I can find, and trust me, I’ve been looking. My lack of a torch and pitchfork should not be construed as acceptance or approval of what was done. Still, I was surprised by the number of emails I received that attacked me personally or suggested I don’t respect patients. As much as I believe in justice, I also believe in redemption and this is an opportunity for ECW to make things right. As one reader said, “No one benefits if an EHR is litigated into bankruptcy.” Let’s not forget the vendors who have closed their doors abruptly in the past, holding their clients (and the data of tens of thousands of patients) hostage.
Another reader who is in the vendor space mentioned that his employer has already received calls from clients threatening to file whistleblower actions unless specific defects were fixed, regardless of whether they had anything to do with certification or not. Product liability law is a specialized discipline and I don’t think adding potentially hundreds of suits to the environment will result in positive change. Look at how healthcare has dealt with harm in the past: Until you get past the culture of fear and penalty, people are reluctant to report issues or to be part of the solution. Another vendor reader mentioned his company is considering being less transparent with their “known issues” lists because of fear of escalation to frivolous lawsuits. That would be unfortunate as well.
One reader offered an interesting thought around analyzing the percentage of budget that top vendors devote to R&D. There could certainly be some interesting data there and you could come up with some conclusions from annual reports and shareholder documentation. Unfortunately, privately held companies don’t have to disclose anything, so we’d be relying on their report. We’ve heard self-reported statements about this over the last year and many felt they were inaccurate, so it’s not likely that we will get “real” numbers anytime soon. I’d personally like to see the R&D budget compared to support compared to marketing and sales. There are several vendors I work with who spend entirely too much on the latter while shortchanging the former.
Others mentioned my lack of attention to the potential impact on clients. Frankly I think it’s too early to discuss, as we don’t have a full picture of whether those practices will be asked to repay incentive money. Any mandatory repayment would almost certainly create the potential of a class action suit against ECW. That’s precisely why I advised my colleagues on the system to sit tight and see how it unfolds and what remediation is offered and how it actually plays out. They’re in an incredibly vulnerable position right now and it would be easy for another vendor to try to take advantage of their situation. Anyone who predatorily goes after these practices should be ashamed, and I know they’re already out there. The last things these practices need is a hasty move or a poorly considered replacement decision.
Regardless of your position on the guilt or innocence of a vendor and whether the punishment was appropriate, this event has the potential to change the healthcare IT landscape in uncertain ways. I hope that other vendors take the advice of one reader and revisit their compliance programs. Ensuring a culture of honesty, accountability, and understanding of the fact that you hold people’s lives in your hands needs to be at the forefront of thought as corporate decision-making occurs. It’s unfortunately not as common in the US today as we would like, whether in healthcare, the automotive industry, or just about anywhere people are trying to make a profit.
Other readers offered answers to the question of what they’d do with the whistleblower payment, with several noting that legal fees will consume a good portion of it. One mentioned that he would donate to non-profits promoting expansion of EHR systems to practices serving indigent patient populations and that cannot afford to buy them. Or to scholarship funds for computer science students willing to commit to working with those practices to help them implement those systems. Both are great ideas, although I’d like to see vendors contributing to those kinds of initiatives outright, rather than having someone do it as a result of a legal action. Or how about scholarships for patient safety training to ensure caregivers and technology professionals know how to spot these kinds of problems? The reader also noted he’d reserve a few dollars to buy a good bottle of bourbon as a reward for a job well done. Based on the level of documentation and time spent by the whistleblower, I’d suggest more than one bottle would be in the offing.
I don’t think this is the last time we’ll see something like this, and the problem isn’t just on the vendor side. I’ve seen plenty of “creativity” and shortcuts from hospitals and health systems with homegrown systems or with vendors outside the CEHRT space, and although they won’t be caught for fraud during the certification process, they are eventually going to run afoul of patient safety. The question is whether organizations will find the settlement motivational and will clean up their houses voluntarily, or whether more headline-generating actions will need to occur to move the industry where it needs to be. The other possibility is more consolidation in an already shrinking industry, which could have unpredictable effects on innovation and emergence of new vendors. The one thing I can say for sure is that only time will tell.
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