New suit contends use of eClinicalWorks resulted in denied MU payment

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A new class action suit has been filed against eClinicalWorks, claiming that physician practices that use the company’s electronic health records software must forfeit meaningful use incentives they have received, or could receive in the future, because the application no longer meets federal requirements.

It’s the latest in a series of legal problems faced by the company since last June, when eClinicalWorks agreed to a settlement with the federal government to end a False Claims Act action against it. In the settlement, the company denied any wrongdoing in agreeing to the terms, and said the claims "settled by the agreement are allegations only, and there have been no determination of liability."

But now, Carrollton Family Clinic in Mississippi and Perrin Curran, MD, who practices at Primary Health Partners in Southern California and is the lead plaintiff, are suing eClinicalWorks in a class action suit that contends the clinics must forfeit meaningful use payments because their EHRs did not meet meaningful use requirements.

In October 2011, Curran attended an eClincialWorks user conference and various presenters encouraged him to use the vendor’s software to attest for meaningful use incentive payments and offered guidance on successfully obtaining payment.

“During the conference, ECW did not disclose that ECW’s software in fact failed to satisfy the requirements of the Meaningful Use Program,” according to the lawsuit. “Dr. Curran relied on the statements made by ECW during this conference.”

Also See: Why the eClinicalWorks settlement may rattle the industry

Curran in February 2012 submitted an attestation of meaningful use of his eClinicalWorks software and received an $18,000 incentive payment.

Curran in October 2013 attended another eClinicalWorks user conference and was again given guidance on using the EHR to get meaningful use payments. The lawsuit notes that again, eClinicalWorks did not disclose that its EHR failed to meet meaningful use requirements.

“Had Dr. Curran and Primary Health Partners known that ECW’s software did not in fact satisfy the requirements of the Meaningful Use program, they would not have renewed their contracts with ECW, would not have entered into further contracts with ECW and would not have made payments to ECW under their contracts,” the lawsuit states. Similar statements are included in the lawsuit pertaining to Carrollton Family Practice.

In the fall of 2015, the federal government audited Curran’s 2011 attestation for a meaningful use incentive payment. When Curran tried generating an audit log to verify information on the attestation, the software would not generate an audit log, and ECW staff also could not generate the audit log for him. “As a result of the software’s failure to generate an audit log, Dr. Curran failed his audit, and the Government required him to return $18,000,” the lawsuit contends.

In 2017, Carrollton Family Clinic had planned to apply for a Medicaid meaningful use incentive payment and was told attestation was not possible because the clinic’s eClinicalWorks software did not perform formulary checks by itself but required the clinic to go through a separate process to verify those checks. Now, plaintiffs propose a class lawsuit covering all people or entities that paid money to eClinicalWorks to purchase, license or use the software between January 14, 2010, and May 30, 2017.

In response to the suit, eClinicalWorks says its claims are erroneous and it plans to fight it.

“We have reviewed the complaint and believe that the allegations are wholly without merit,” a statement from the company states. “eClinicalWorks’ software has been continuously certified for use in connection with the Meaningful Use program since the program was created, and tens of thousands of eClinicalWorks users have demonstrated meaningful use and successfully attested and received incentives. eClinicalWorks plans to vigorously defend itself against these allegations.”

The full text of the 60-page lawsuit is available here.

The company is also contesting another class-action suit filed against it in November, when Kristina Tot, administrator of the estate of Stjepan Tot, sued the company for $999 million on grounds that the EHR failed to properly maintain Stjepan Tot’s medical records. In particular, Stjepan Tot was unable to determine reliably when his first symptoms of cancer appeared because his medical records failed to accurately display his medical history on progress notes, the suit contends.

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