The U.S. Department of Justice and the Office of the Inspector General of the United States Department of Health and Human Services announced this month news of a Settlement Agreement and a Corporate Integrity Agreement (the “Agreements”) with Greenway Health, LLC (“Greenway”). The Agreements include a payment by Greenway of $57.25 million. Greenway customers should understand that the Agreements provide certain rights, including upgrade, data migration and termination rights as discussed below, that may impact current and anticipated use of the Greenway electronic health record Prime Suite product (“Prime Suite”). While the facts and circumstances detailed in the Agreements may cause concerns for some Prime Suite customers previously attesting to meaningful use under the Medicare and Medicaid EHR Incentive Program (“EHR Incentive Program”), the current facts and prior guidance from the Centers for Medicare & Medicaid Services (“CMS”) should allay such concerns as discussed below.
Greenway Customer Rights Under the Agreements
The terms of the Agreements require Greenway to provide all current customers, at no cost: (i) the latest versions of Prime Suite in the same Greenway-hosted or self-hosted model; and (ii) the latest updates to all databases, including any drug database, needed to operate the latest version of certified Prime Suite (the “Upgrade Option”). Greenway must also offer to each customer, at no cost, the opportunity to migrate all data from Prime Suite to another software product developed by Greenway (the “Migration Option”). Both the Upgrade Option and Migration Option must be provided at no additional charge to customers including, without limitation, any fees for related implementation, onsite installation or training services.
Further, a Prime Suite customer may request Greenway transfer customers’ data within Prime Suite to another electronic health record system and vendor in an commercially reasonable, structured format (“Data Transfer Option”). Customers must request the Data Transfer Option within one year of receiving notice of the settlement from Greenway. The Data Transfer Option also includes the right to terminate the existing agreement between the user and Greenway without any break or termination fees (the user must pay all fees owing for services prior to the Data Transfer Option).
A full disclosure of customer rights and Greenway obligations is detailed in the Agreements and may require customers to take timely actions. Election of the Upgrade Option by a Prime Suite customer does not preclude or in any way alter the right for the same customer to also exercise the Migration Option or the Data Transfer Option.
Impact Upon Prior EHR Incentive Program
For prior attestations of being a meaningful user of a Certified Electronic Health Record Technology (“CEHRT”) under the EHR Incentive Program, Greenway customers should not have any concerns as Prime Suite was a CEHRT as certified by Drummond Group, which is an ONC-Authorized Certification Body (ONC-ACB) as required to make the attestation. Even if Prime Suite were to be decertified, which (as of February 12, 2019) it has not been, customers should have no worries as to prior attestations. CMS has issued an FAQ on this subject (FAQ12657). In this FAQ, CMS stated that “if your product is decertified, you can still use that product to attest if your EHR reporting period ended before the decertification occurred.” If Prime Suite is decertified, then customers will need to seek hardship exceptions in future attestation periods if they continue to use Prime Suite (see the above mentioned FAQ and applicable process). Please note, that hardship application process may differ for the MACRA/MIPS program for eligible clinicians.
If you have questions regarding what rights as a Greenway customer you may have under the Agreements, please contact:
- Jeff Short at 317.977.1413 or jshort@hallrender.com;
- Ammon Fillmore at 317.977.1492 or afillmore@hallrender.com; or
- Your regular Hall Render attorney.
