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Curbside Consult with Dr. Jayne 6/5/17

June 5, 2017 Dr. Jayne 14 Comments


Quite a few people called or emailed this week to find out what I thought of the EClinicalWorks settlement. Two of them were ECW users asking for my advice on whether they should change EHRs and, if so, what I thought they should be looking at. For those practices potentially impacted by the alleged wrongdoing, it’s a very uncertain time. My advice was to pause and let the dust settle before making any decisions. Neither of the ECW physicians I talked to this week had concerns about how the system is actually performing based on their scope of use, and felt fairly confident that they’re not experiencing functionality issues that impact patient care.

As for those that reached out simply curious about what I thought, I’ll share what I had to say. There were several allegations addressed in the settlement. I say “allegations” deliberately because ECW hasn’t admitted guilt nor has it been proven in a court of law. Everyone can speculate on the fact that they settled, but given that I have a plaintiff’s attorney in the family, I understand how expensive litigation can be and how $155 million may be a bargain compared to having to mount a defense, deal with the side effects of having half your company (and your customers) deposed, and having ongoing distraction that impacts your ability to keep the lights on and the business running.

First, let’s look at the kickback issue. The suit alleged that it gave kickbacks to customers for promoting its products, including payments for reference site visits. Many of the vendors I’ve worked with would also fall into this category. During my days at Big Hospital System, we regularly received extra attention from our vendor in exchange for being a reference site, and at times we also received credits against our software maintenance payments. I’m sure that could be construed as a kickback, although our site visits were quite “tell it like it is” rather than pure attempts to induce anyone to switch to the vendor. We always insisted that the vendor reps stay out of the discussion and sit in the back of the room or outside the room altogether. It looks like ECW also paid a bonus when prospects actually signed, and paid individual physicians to do references, which is a little murkier.

The way it’s described in the actual filing, any “manufacturers of products paid for in whole or in part by federal healthcare programs may not offer or pay any remuneration, in cash or in kind, directly or indirectly, to induce physicians or hospitals or others to order or recommend products paid for in whole or in part by Federal healthcare programs such as Medicare and Medicaid.” If you take that at face value, then the medical device reps need to stop wooing the cardiologists and orthopedic surgeons, regardless of whether they’re reporting their meals and tchotchkes in compliance with Open Payments. The language also applies to services, so the people from hospice that bring lunch while they explain the services they offer are guilty as well, even though they’re a nonprofit.

Next, let’s look at the issue of cheating on certification. Although some of what they did (such as hard coding the RxNorm codes for the test scripts rather than having the system access the entire library) is pretty egregious, anyone who’s been part of a certification process knows that there’s a gray area between complying with the test scripts and complying with the spirit of the requirement versus the letter of the requirement. There’s plenty of functionality out there that passes the test scripts but isn’t user friendly or sometimes isn’t even usable.

Let’s also look at the allegation that ECW “released software without adequate testing and overly relied on customers to identify bugs and other problems. Some bugs and problems – even some identified as ‘critical’ or ‘urgent’ – persisted on ECW’s bug list for months and even years. ECW lacked reliable version control, so problems addressed in one version of the software or for one particular user could reappear in other versions or remain unaddressed for other customers.” I’m currently working with half a dozen vendors who could fall into that description, and can name a few more to round out the group. Nearly every vendor I’ve worked with is guilty of this to some degree.

As a customer, I’ve been part of beta testing programs that are more like alphas, and have seen code that doesn’t seem to have been tested by anyone conscious. Sure, the coded functionality may have met the technical requirement specifications, so it passed, but when deployed to the field it’s broken or simply useless. I heard from a couple of friends who work for vendors that they were taking joy in ECWs pain. I challenged them to think about their own situations, and whether they’ve ever let a regression error go out the door. It sobered them up pretty quickly. Developers who live in glass houses definitely should not throw stones, because they could be the next ones in the spotlight.

That takes me to looking at the whistleblower component. There was quite a bit of buzz around the fact that the software technician who filed the original suit will receive $30 million. I’m wondering if this is going to be an incentive for individuals to try to prove wrongdoing across the industry in exchange for a potential windfall. Hopefully, this will spur vendors to pay more attention (and devote more resources) to defect resolution as well as defect prevention, since most vendors likely have a backlog of issues needing remediation. On the other hand, it could lead to a lot of rock-turning during which plenty of creepy crawlies will come to light. If vendors have robust systems to manage their issues they’ll persevere, but if not, potential whistleblowers could create a lot of noise that will create distractions that may ultimately harm customers.

Hopefully this settlement will be a call to action for vendors to get their houses in order, and bring greater transparency to the sausage-making that is the certification process. It’s been interesting, though, to see the number of people putting the blame on the certification process itself. The bottom line is that there are rules; if we think they are unfair, we should seek to have them changed in an orderly way rather than just flout them. It will be interesting to look back on this in six months or a year and see whether it’s changed anything or whether it just goes down as another footnote on corporate wrongdoing.

What would you do with a $30 million whistleblower settlement? Email me.

Email Dr. Jayne.

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Currently there are "14 comments" on this Article:

  1. Q: “What would you do with a $30 million whistleblower settlement?”
    A: Buy 1/10 of an Epic install?

  2. Let me tell you as an eCW customer, I am not the least bit surprised they were fined, and they should have been hit harder. they are by far and away the worst vendor, and most dishonest vendor, I have ever worked with in my 30+ years in the industry. Nothing is ever their responsibility, they cannot or will not provide any data to substantiate any position they take and they cannot/will not ever hold one another accountable for things that happen due to the incestuous nature of the company (they are all related). It takes an act of congress to get anything done with them and even then they barely get the message. Run from these guys as fast as you can if you are an existing customer; Check your agreement and see if there is any “out” based on this development and switch to another vendor quickly. At least now you are entitled to free services to assist in migrating your data.

  3. ECW – in thinking about all this and reading Dr. Jayne’s comments, I wonder what the actual percent of annual revenue or budget is devoted to R&D including bug fixes and resolution by the top 10 -15 EHR vendors? In times of yore a large western AMC I worked at required all software vendors to demonstrate that at least 10% of annual company top line revenues fell to R&D categories. This didn’t always result in doing business with flawless code but it did set expectations about what a partnership meant. Is there anything like this anymore rolling around the industry?

    It would seem like an interesting interview or article to get some of the resident vendor people like Faulkner or Bush to expound on this topic. Not sure what KLAS does with something like this either – do they measure how many real dollars go toward this area in their reviews of vendors?

  4. As a former EHR product manager, I can attest to the reality that extraordinary actions do take place to pass onerous certification testing. In my experience, shortcuts that needed to be taken in the throes of certification were replaced by corrected code before the production code was released. From my perspective, that falls into the no harm, no foul category. It seems that’s not what eCW did, and there’s no way to know whether that was an error of omission, or of commission.

    In the end, I think this settlement has the potential to be harmful to the industry. Doctors are a litigious sort, and I foresee a tidal wave of claims that EHR vendors will need to defend against. There’s a difference between having buyers remorse because you didn’t have realistic expectations about how using an EHR, and an actual defect which could affect patient safety. Money spent on legal defense is money NOT spent on innovation, or actually fixing defects. No one benefits if a EHR vendor is litigated into bankruptcy.

    Were patients harmed by lack of RxNorm interoperability? Unlikely. Were eCW users inconvenienced by lack of RxNorm interoperability? Unlikely. I don’t think the sentence fits the crime in this case. And I’m concerned for the industry as a whole if the 3rd most widely used ambulatory EHR is now in a bad financial situation which will cause their level of support to suffer. Because that WILL cause harm.

  5. Dr Jayne , I found your response another reason not to read your blog ! $155 million is enough admitted guilt for me. Since you have a “plaintiffs attorney ” in the family ,you would have been wise to keep your comments to yourself…….

  6. I really hope the DOJ subpoenas for ItsAllGood info as that’s a clear admission of guilt and that whoever posted it was party to fraud.

  7. I’m disappointed in your lack of respect for patients, and providers, and for the countries certification programs here.

    They cheated. End of story. They should be forced to close. Permanently.

    They also risked and continue to risk patient lives. Not acceptable. Company should be closed, people should be in jail. Your tender posts seem a change in your usual candor here.


  8. Stories like this (and Volkswagen, Countrywide, Barclays, et.al.) are what will ultimately lead the proletariat with their torches and pitchforks to action.

    The idea that a private enterprise (be it eCW or VW) can willfully evade regulation, and in doing so, both defraud the public treasury AND put its citizens at risk; with the only penalty being a fine that pales in comparison to the gains on the fraud, is ridiculous. Every compliance training I’ve ever been forced to sit through makes it painfully clear that if you do anything like this, you’re looking at jail time. Except nobody ever goes to jail.

    With respect to the AKS allegation, I have a fair amount of sympathy. Many vendors do this kind of stuff, BUT the bigger ones have robust compliance functions and DRILL their staff on where the (easily crossed) lines are. I can understand eCW thinking that they’re just doing what everybody else is, without having spent the time and money to establish the boundaries of the program.

  9. shameful and there are many more vendors out there who have struggles with certification and have serious bugs that compromise patient safety in their products. some bugs are caught in time for the patches /fixes and others are “discovered” by clients.
    Not a peep of apology on the e-cw website for customers.

    Vendors routinely provide credits for site visits- be it reduced maintenance fees or reduced future purchase costs ( less X $ )
    Vendors always supply food (of much value in hospitals to staff and physicians who act like they have just returned from saving lives in Africa,gouging on coffee /donuts/ sandwiches)

    The entire industry needs a shakeup.
    Vendors / Administrators / CIO’s / CMIO’s, big suits at hospitals / physicians / vendor leadership.
    can name at least one publicly traded vendor where much needed management overhaul and culture change is needed. yet the analysts keep at it – fake news!

    the industry has to change for the better – with shift towards usable products for staff and clinicians alike, cloud based technology, cut out meaningless regulation.

    • I used to be a product manager for two EHR companies, and the things I’ve seen would make your skin crawl. I really miss the contact with my doctors and nurses, I loved working with them and doing what I could to help them care for their patients, but the stress of knowing what needed to be fixed and constantly being brushed off by senior management at both companies has probably taken three years off my life.

  10. Apologist talk in this context is just crazy. I too have worked for a big healthcare software vendor. We had an in-house development team (none of this offshore stuff). I was initially responsible for version control on the team I joined, and spent several years doing that. We did not ship releases that were missing the expected features and fixes (at least, not when I was doing that job). Our jobs and reputations depended on the ability to perform to this standard. Sorry, but that’s just the way it was. We performed thorough testing. We had to answer to the FDA, as well as ISO.

    Come on, people, what in tarnation is going on out there?? I am seeing some comments that make it sound like all this (unreliable version control, untested releases, fudging certifications) is forgivable, and expected. It is not.

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