CBCA 3522

DENIED: November 18, 2015 CBCA 3522 EHR DOCTORS, INC., Appellant, v. SOCIAL SECURITY ADMINISTRATION, Respondent. Richard Braman, Vice President of EHR Doctors, Inc., Pompano Beach, FL, appearing for Appellant. Lucinda E. Davis, Dorothy M. Guy, and Samuel P. Piazza, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent. Before Board Judges SOMERS, VERGILIO, and DRUMMOND.1 SOMERS, Board Judge. The Social Security Administration (SSA) filed a motion for summary relief. SSA argues that the contracting officer properly denied the claim of EHR Doctors, Inc. (EHR) that it accepted a contract modification under duress. For the reasons that follow, we 1 Judge Anthony S. Borwick, a member of the panel originally assigned to this appeal, retired prior to the issuance of the Board’s decision. Judge Candida S. Steel was selected at random as a replacement panel member. Subsequently, Judge Candida S. Steel also retired prior to the issuance of the Board’s decision. Judge Jerome M. Drummond was selected at random as a replacement panel member. CBCA 3522 2 grant respondent’s motion for summary relief, finding that appellant has failed to show duress. The appeal is denied. Findings of Fact2 On February 1, 2010, SSA and EHR entered into contract no. SS00-10-60029, which, in combination with other contracts awarded by SSA, would enable the agency to set up a computerized process for electronically obtaining and utilizing medical records of applicants for Social Security disability benefits. The contract called for EHR, through its subcontractor, Oroville Hospital (Oroville), to provide a computerized process for 1000 medical records. In return, SSA would pay EHR $1,000,000. SSA structured this contract around three performance milestones. Only the first is relevant here. Milestone 1 required EHR to submit a sample continuity of care document (CCD) and a verified certification of an electronic health record application. Upon completion of each milestone, SSA would pay EHR a fixed percentage of the contract price. The contract called for EHR to complete milestone 1 by June 22, 2010; EHR did not do so. EHR alleges that Oroville failed to fulfill the terms of its subcontract with EHR by not providing medical records needed to complete milestone 1. EHR claimed it failed to meet milestone 1 because of Oroville’s failure to complete required certifications and verifications, the hospital’s inability to provide the number of medical records it represented that it could, and Oroville’s refusal to grant EHR access to its system to conduct its own content verification. On July 19, 2010, SSA issued a cure notice to EHR. The cure notice provided EHR thirty days to deliver a sample CCD from an acceptable medical provider and a revised project plan by August 18, 2010. The notice stated that EHR could submit the sample CCD from its original medical provider, Oroville, or a new medical care provider or providers. The notice further instructed EHR to submit a completed content checklist for any new medical provider(s) fifteen calendar days prior to the sample CCD due date of August 18, 2010, and advised that SSA would review the content checklist to determine whether EHR’s proposed new provider(s) was an acceptable substitute. The letter concluded that failure to comply with the cure notice could result in contract termination. 2 A general background may be found in an opinion earlier issued by the Board involving the same appeal, in which the Board granted in part respondent’s motion to dismiss, or, in the alternative, for summary relief. EHR Doctors, Inc. v. Social Security Administration, CBCA 3522, 14-1 BCA ¶ 35,630. CBCA 3522 3 Following the issuance of the cure notice, EHR selected Midland Memorial Hospital (Midland) as its new source of medical records. EHR estimated that Midland could provide 850 to 950 medical records. After evaluating EHR’s request, SSA determined that Midland’s estimated volume was substantially less—32.6% less—than Oroville’s. Subsequently, SSA conducted its own review of Midland and estimated that Midland could provide a transaction volume of 677 medical records. Based on this estimate, SSA accepted Midland as the new provider, subject to a contract price reduction to $677,000.