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EPtalk by Dr. Jayne 6/8/17

June 8, 2017 Dr. Jayne 9 Comments

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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Currently there are "9 comments" on this Article:

  1. The irony of the fraud is that the other vendors are most certainly going to be caught. They have a contact that admits to it in the thread…. nothing like making the DOJ’s job easy.

    Even Dr. J got in on the act “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.”. Not only could that be construed as a kick back…. it is A KICKBACK! Regardless of whether you represented the vendor fairly has nothing to do with it. It’d be like a city council person taking $1K in gifts from a vendor and then truthfully evaluating the vendor honestly in a bid. Doesn’t matter…they took a bribe! Notice Dr J didn’t mention telling the other organizations they were being paid to be a reference site!

    I’ve heard through the grapevine that Big Hospital System also has some particularly challenging issues regarding the crack down on kickbacks through donations to their foundations whereas they funded marketing through money given in a “quid-pro-quo” fashion to their foundation.

    • Actually, prospective clients on site visits were made aware that we received compensation for being a reference site. It was in an agreement they had to sign to come onsite. I didn’t mention this either, but there was no additional compensation whether a sale occurred or not. We received a flat amount for being in the program in consideration of hosting up to one visit per quarter. Compared to the hourly rate for all the people who were away from their day jobs to participate, I’m not sure we came out ahead. And my hospital didn’t have a foundation btw.

      • It’s disturbing that your organization called this a “reference” site. Could you imagine if you went to hire someone and the references they gave you had the disclaimer “Oh… I’m paid by Joe to be his reference”. Though that may explain how some of my less than stellar and/or less educated colleagues over the years got jobs.

        Effectively and more accurately, you were a paid demonstration site.

        • PM – When representatives of the hospital in a vendor search visit another hospital (that of course was facilitated by the vendor) you don’t think the buyers are aware that there may be some bias here? Beyond that you don’t seem to realize that their are other considerations beyond features and functions that are also fleshed out during site visits. Most of the real action during site visits take place in side bar conversations where a keyboard or screen is nowhere in site.

          • If you’re providing a “reference” there is an expectation that you are genuinely providing a reference. In this case, they’re just lowering their hosting bills. Hence, a paid demonstration site. Poor decisions by the organization to include more staff than was worth it just demonstrates poor management. The good news is this is all ultimately a mute point because almost all organizations have picked their EHR.

            I haven’t mentioned anything about features or functions so I’m not clear where you’re coming from. Or by “other considerations” do you mean other forms of kickbacks / promises of jobs for staff during evaluations etc.? An evaluation of a vendor certainly includes more than just features / functionality, but also reputation, financial standing, and any number of other non-technical factors. The issue is one of those factors is their “references”. I suspect prospects clearly picked up on the fact one site had to be paid and other vendors didn’t have paid demonstration sites, but REAL references.

  2. I’ve not seen MDs, RNs, pharmacists willing to lie to prospective clients/ peers. They may exist. Clinicians we worked with would not be good at masking beliefs or deliver academy award performances for a paid vendor “promotion”. The site visit is WAY more than demos.

    Prospect visits usually include walking halls, review of hard data, and personal interactions with different levels of staff – not just PPTs and demos with vendor “spin”. 100% agree with “You don’t need a weatherman….” regarding value of informal discussions – peer to peer.

    HIT vendors in past expected reference sites, picked based on many success metrics, to instruct and entertain endless streams of prospect visitors, without payment. I see HCO compensation commensurate with expenses as responsible business practice. Are hospitals and clinicians this easily “corruptible”?

  3. I think one thing missing here when talking about “kickbacks” is the time and effort required in being a reference site. Hosting another group on site, walking the halls, having side conversations all take time and effort. Why would an organization be willing to go through all that work if they were not compensated for their time in some way? Excessive kickbacks to promote dishonesty are a huge issue…but fair compensation for a providers/organizations time I think seems more than fair.

  4. I would make an analogy.

    My organization has been a beta test site for a major HIS vendor and product. Our compensation for doing this work, for going out of our way, for expending internal resources on something with no immediate payoff?

    Zero. Zilch. Nada, as they say.

    There was a slim hope that our enhancement requests might get more attention, but even then the vendor made no commitments in that light.

    My takeaways:

    1). Customers take on projects and work with no expectation of compensation. It happens all the time!
    2). OK, I could see maybe reimbursement for expenses for being a site host and a reference. However where is the tie-in to actual expenses? How do we ensure Marketing doesn’t get in there and “sweeten” the deal to get a better reference? What comfort do we have that our customer side management doesn’t fall into the trap of, “well it’s all for a good cause to buy a new defibrillator so Yes, we’ll take that extra $10,000, over and above expenses”?

    The phrase Slippery Slope comes to mind, big time.

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