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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

UNITED STATES OF AMERICA
V.

PRACTICE FUSION, INC.,
Defendant.

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DEFERRED PROSECUTION AGREEMENT

Pursuant to the understandings specified below, the United States of America (the
"Government") through its attorney Christina E. Nolan, United States Attorney for the District of
Vermont (the "USAO" or the "Office"), and the defendant Practice Fusion, Inc. ("Practice
Fusion" or the "Company"), under authority granted by its Board of Directors in the form of a
Board Resolution (a copy of which is attached as Exhibit A), hereby enter into this Deferred
Prosecution Agreement (the "Agreement").
The Criminal Information
1.

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Practice Fusion acknowledges and consents to the filing of a two count

Information (the "Information") in the United States District Court for the District of Vermont
(the "Court"), charging Practice Fusion with conspiring with a leading extended release opioid
("ERO") company ("Pharma Co. X") to receive remuneration in return for arranging for or
recommending purchasing or ordering of a good or item for which payment may be made in
whole or in part under a Federal health care program in violation of 18 U.S.C. § 371; and
knowingly and willfully soliciting and receiving remuneration from Pharma Co. X in return for
arranging for or recommending purchasing or ordering of a good or item for which payment may

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be made in whole or in part under a Federal health care program in violation of 42 U.S.C. §
1320a-7b(b)(l). A copy of the Information is attached as Exhibit B. This Agreement shall take
effect upon filing of the Information (the "Effective Date").
Acceptance of Responsibility and Admissions of Fact

2.

The Office enters into this Agreement based on the individual circumstances

presented by this case and the Company, including:
a.

Practice Fusion stipulates that the facts set forth in the Statement of Facts,

attached hereto as Exhibit C and incorporated herein, are true and accurate, and admits, accepts
and acknowledges that it is responsible under United States laws for the acts of its officers and
employees as set forth in the Statement of Facts. Should the Office pursue the prosecution that is
deferred by this Agreement, Practice Fusion stipulates to the admissibility of the Statement of
Facts in any proceeding, including any trial and sentencing proceeding;
b.

Practice Fusion did not receive voluntary disclosure credit because it did

not voluntarily disclose to the Office, or any other Governmental agency, the conduct described
in the Statement of Facts. Even after the Office had issued formal legal process and requested
documents relating to Pharma Co. X, Practice Fusion did not identify and disclose to the Office
the conduct described in the Statement of Facts;
c.

Practice Fusion did not self-disclose any wrongdoing or identify any

potential legal or regulatory areas of concern to the Government; identify individual wrongdoers;
disclose facts relevant to the Government's investigation that the Government was not previously
aware of; or acknowledge and accept responsibility for any wrongdoing by Practice Fusion or
any of its employees. Practice Fusion informed the Government on multiple occasions that it
had found nothing troubling at the Company from a legal or regulatory perspective. Practice

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Fusion additionally sought on multiple occasions to limit the documents produced in response to
Government subpoenas, which resulted in the parties conducting multiple meet and confer
conferences. In November 2018, the Office provided written notice to Practice Fusion that it did
not view Practice Fusion as cooperating with the Government's investigation and any professed
cooperation was deficient. Shortly thereafter, and as a consequence of the Office's view of
Practice Fusion's approach to the investigation, the Office pursued a portion of its investigation
covertly and in Spring 2019 advised Practice Fusion that it was prepared to charge Practice
Fusion.
d.

Only after the Government advised Practice Fusion that it was prepared to

bring charges did Practice Fusion's conduct change. The terms of this Agreement reflect and
take into consideration Practice Fusion's belated cooperation. Upon learning of the
government's intent to bring charges, Practice Fusion promptly completed an additional internal
investigation. Practice Fusion and Allscripts communicated immediately with the Government
regarding Practice Fusion's intention and desire to cooperate fully with the Government.
Practice Fusion's cooperation at this stage included conducting additional investigation into the
conduct described in the Statement of Facts, making regular presentations to the Office,
producing additional documents as requested by the Government, agreeing to accept
responsibility, and collecting, analyzing, and preparing additional evidence and information to be
shared with the Office;
e.

Practice Fusion also engaged in remedial measures, including the

following: promptly removing from its electronic health record ("EHR") all clinical decision
support ("CDS") alerts for which it had received remuneration from its pharmaceutical company
clients; conducting an immediate review of the medical appropriateness of its existing

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pharmaceutical-sponsored CDS alerts; engaging outside counsel to conduct a review of all
sponsored CDS alerts; and pausing sale of all new sponsored CDS alerts pending completion of
expert and legal review;
f.

Practice Fusion has enhanced and has committed to continuing to enhance

its compliance program and internal controls, including ensuring its compliance program
satisfies the requirements set forth in Exhibit D to this Agreement ("Compliance Addendum"),
developing and implementing additional role-based training on the Anti-Kickback Statute,
restructuring certain aspects of Practice Fusion's organization to provide for enhanced separation
between clinical and commercial activities and to provide increased supervision by qualified
individuals of the clinical initiatives undertaken by the business, and revising existing policies
and procedures to enhance controls around CDS alerts;
g.

Based on the above, Practice Fusion's remediation, agreement to the

appointment of an Oversight Organization, implementation of the Compliance Addendum,
agreement to undertake the terms of the Additional Compliance Terms (which is hereby
incorporated by reference), and agreement to report to the Office as set forth in Paragraphs 7 and
8, the Office determined that an independent compliance monitor was unnecessary.

Criminal Fine, Forfeiture, and Civil False Claims Act Payment
3.

Practice Fusion agrees to pay a total of $145,000,000.00 to the United States and

participating States, which includes a criminal fine in the amount of $25,398,300.00 ("Criminal
Fine") and forfeiture of $959,700.00 ("Forfeiture") (together with the Criminal Fine, the
"Criminal Penalty"). The Criminal Penalty is based on the conduct described in the Information
and the Statement of Facts and shall be paid to the United States pursuant to this Agreement.
Practice Fusion additionally agrees to the payment of $118,642,000 to resolve allegations of

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violations of the False Claims Act, 31 U.S.C. § 3729, et seq. Practice Fusion's conduct giving
rise to violations of the False Claims Act are described in the Covered Conduct section of a Civil
Settlement Agreement entered between the United States and Practice Fusion.
4.

Practice Fusion shall transfer the Criminal Penalty to the United States by no

more than 10 days following the Effective Date of this Agreement. Such payment shall be made
by wire instructions provided by the Office. If Practice Fusion fails to timely make the payment
required under this paragraph, interest (at the rate specified in 28 U.S.C. § 1961) shall accrue on
the unpaid balance through the date of payment, unless the Office, in its sole discretion, chooses
to reinstate prosecution pursuant to Paragraphs 14, and 15 below. Practice Fusion certifies that
the funds used to pay the Criminal Penalty are not the subject of any lien, security agreement, or
other encumbrance. Transferring encumbered funds or failing to pass clean title to these funds in
any way will be considered a breach of this Agreement and the United States shall be released
from any of its obligations hereto.
5.

Practice Fusion agrees that the Criminal Penalty shall be treated as a penalty paid

to the Government for all purposes, including all tax purposes. Practice Fusion agrees that it will
not claim, assert, or apply for a tax deduction or tax credit with regard to any federal, state, local,
or foreign tax for any portion of the Criminal Penalty that Practice Fusion has agreed to pay the
United States pursuant to this Agreement.

Practice Fusion's Non-Monetary Obligations
6.

Practice Fusion agrees to cooperate fully with the Office, and any other

governmental agency designated by the Office regarding (1) any matter relating to the conduct
described in the Information or Statement of Facts, (2) the Covered Conduct described in the
Civil Settlement Agreement, (3) its privacy practices and use of personal health information, (4)

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any investigation or prosecution of Practice Fusion's current or former officers, agents, affiliates,
directors, and employees related to the issues described in (1) - (3); or (5) any matter relating to
unlawful conduct by Practice Fusion's current or former customers and/or counterparty or client
related to the issues described in (1) - (3). Practice Fusion's obligation to cooperate shall
continue until the later of the date upon which all investigations and prosecutions arising out of:
a.

the conduct described in the Statement of Facts;

b.

the Covered Conduct described in the Civil Settlement Agreement; and

the end of the term specified in Paragraph 10. Practice Fusion's subsidiaries and majority-owned
and controlled affiliates are required to cooperate fully to the same extent as Practice Fusion. As
described further in Paragraph 28 below, should Practice Fusion cease to exist as a going
concern, or should substantially all of its employees and/or its assets be transferred to another
entity, such successor in interest shall be required to cooperate fully to the same extent as
Practice Fusion.
7.

It is understood that Practice Fusion shall:
a.

truthfully and completely disclose all information with respect to the

activities of Practice Fusion and its officers, agents, directors, affiliates and employees
concerning all matters about which the Office inquires of it, which information can be used for
any purpose;
b.

cooperate fully with the Office, the Department of Justice Commercial

Litigation Branch, Fraud Section ("Civil Frauds"), and any other law enforcement agency
designated by the Office;
c.

attend all meetings at which the Office requests its presence and use its

best efforts to secure the attendance and truthful statements or testimony of any past or current

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officers, directors, agents, or employees of Practice Fusion at any meeting, interview, deposition,
sworn civil investigative demand ("CID") testimony, before the grand jury, or at trial or at any
other court proceeding;
d.

provide to the Office, upon request, any document, record, or other

tangible evidence relating to matters about which the Office or any designated law enforcement
agency inquires of it;
e.

assemble, organize, and provide in a responsive and prompt fashion, and

upon request, on an expedited schedule, all documents, records, information and other evidence
in Practice Fusion's possession, custody or control, as may be requested by the Office, or other
designated law enforcement agency;
f.

volunteer and provide to the Office any information and documents that

come to Practice Fusion's attention that may be relevant to the Office's investigation of this
matter, any issue related to the Statement of Facts, and any issue that would fall within the scope
of the duties of the Oversight Organization referred to in Paragraph 24;
g.

provide testimony or information necessary to identify or establish the

original location, authenticity, or other basis for admission into evidence of documents or
physical evidence in any criminal or other proceeding as requested by the Office, or designated
governmental agency, including, but not limited to information and testimony concerning the
conduct set forth in the Information and Statements of Facts, and the Covered Conduct as
described in the Civil Settlement Agreement;
h.

bring to the Office's attention all criminal conduct by Practice Fusion or

any of its agents or employees acting within the scope of their employment related to violations

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of the Federal laws of the United States, as to which Practice Fusion's Board of Directors, senior
management, or legal and compliance personnel are aware;
1.

bring to the Office's attention any administrative, regulatory, civil or

criminal proceeding or investigation by a federal or state government agency of Practice Fusion
or any of its agents or employees acting within the scope of their employment;

J.

not directly or indirectly, or through its counsel, enter into any Joint

Defense Agreements, provide any advice, information, documents, or otherwise provide any
assistance to any third parties (including current or former employees, directors, agents, officers,
affiliates, counterparties, and/or clients) in connection with any investigation and/or enforcement
action by the Office or Department of Justice involving any such party, related to the issues
described in Paragraph 6 (1)-(3) above; except, Practice Fusion may provide information and
documents as required by law or as directed by the Office; and
k.

commit (i) no criminal offenses, or (ii) regulatory violations pertaining to

the CDS issues involved in this Agreement under the federal laws of the United States
subsequent to the execution of this Agreement.
Nothing in this paragraph shall require Practice Fusion to produce information in
violation of law or protected by a valid claim of attorney-client privilege or the attomey-workproduct doctrine.
8.

In addition to the obligations set forth in Paragraph 7, during the term of this

Agreement, should the Company, or any of its subsidiaries or affiliates, learn of any evidence of
a kickback violation by any other EHR vendor, Practice Fusion shall promptly report such
evidence or allegation to the Office and Civil Frauds. This provision shall not apply (1) to the
extent Practice Fusion is legally prohibited from reporting any evidence or allegation of

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misconduct by any other EHR vendor or (2) to information obtained by Practice Fusion in the
course of due diligence or other information exchanged as part of a potential strategic transaction
or other corporate transaction.
9.

For the duration of this Deferred Prosecution Agreement, Practice Fusion shall

publicly host, at its own expense, the documents underlying the conduct described in the
Statement of Facts. Such documents shall include, but not be limited to, the communications,
presentations, contracts, negotiations, analyses, and reports agreed to by the Office as reflecting
the relevant communications. Such documents shall be hosted on a public internet site and
Practice Fusion shall bear all costs and responsibility for redacting any personal information,
personal health information, trade secrets, and information sufficient to identify Pharma Co. X
and its employees and drug brands unless and until directed by the Office that such information
relating to Pharma Co. X need no longer be redacted.
10.

Practice Fusion agrees that its obligation to cooperate pursuant to this agreement

and the Additional Compliance Terms, which shall commence on the Effective Date, will
continue for three (3) years from the date on which the Information is filed, unless otherwise
extended pursuant to Paragraph 15 below. Practice Fusion's obligation to cooperate is not
intended to apply in the event that a prosecution against Practice Fusion by this Office is pursued
and not deferred.
Deferral of Prosecution

11.

In consideration of Practice Fusion's entry into this Agreement, the Additional

Compliance Terms, and its commitment to: (a) accept and acknowledge responsibility for its
conduct, as described in the Statement of Facts, acknowledge the filing of the Information, and
admit the facts in the Statement of Facts; (b) cooperate with the Office and any other law

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enforcement agency designated by this Office; (c) make the payments specified in this
Agreement; (d) comply with Federal criminal laws (as provided herein in Paragraph 7); and (e)
otherwise comply with all of the terms of this Agreement and the Additional Compliance Terms,
the Office shall recommend to the Court that prosecution of Practice Fusion on the Information
be deferred for three (3) years from the Effective Date of this Agreement, except that the term of
this Agreement may be extended as described in Paragraph 15 below, in the sole discretion of the
Office.
12.

Practice Fusion shall expressly waive indictment and all rights to a speedy trial

pursuant to the Sixth Amendment of the United States Constitution, 18 U.S.C. § 3161, Federal
Rule of Criminal Procedure 48(b), and any applicable Local Rules of the United States District
Court for the District of Vermont for the period during which this Agreement is in effect.
Practice Fusion further agrees to consent to venue in the United States District Court for the
District of Vermont, and waive any statute of limitations defense should the Office pursue the
prosecution of the crimes charged in the Information.
13.

The Office agrees that, if Practice Fusion is in compliance with all of its

obligations under this Agreement, the Office will, within thirty (30) days after the expiration of
the deferral-of-prosecution period (including any extensions thereof), seek dismissal, with
prejudice of the Information filed against Practice Fusion pursuant to this Agreement, except in
the event of a violation by Practice Fusion of any additional charges against Practice Fusion
relating to its conduct as described in the admitted Statement of Facts. This Agreement does not
provide any protection against prosecution for any crimes except as set forth above and does not
apply to any individual or entity other than Practice Fusion. Practice Fusion and the Office
understand that the Agreement to defer prosecution of Practice Fusion can only operate as

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intended if the Court grants a waiver of the Speedy Trial Act pursuant to 18 U.S.C. § 316l(h)(2).
Should the Court decline to do so-or should the Court decline to defer prosecution for any other
reason-both the Office and Practice Fusion shall be released from any obligation imposed upon
them by this Agreement, and this Agreement shall be null and void, except for the tolling
provision set forth in Paragraph 12.

Breach of the Agreement
14.

It is understood that should the Office, in its sole discretion, but subject to the

notice and cure provisions set forth in Paragraph 17 below, determine that Practice Fusion has:
(a) knowingly given false, incomplete or misleading information, either during the term of this
Agreement or in connection with the Office's investigation of the conduct described in the
Information and Statement of Facts, or described in the Covered Conduct section of the Civil
Settlement Agreement, (b) committed any crime under the Federal laws of the United States
subsequent to the execution of this Agreement, or (c) otherwise violated any provision of this
Agreement, including the terms of the Additional Compliance Terms, Practice Fusion shall, in
the Office's sole discretion, thereafter be subject to prosecution for any federal criminal violation
or suit for any civil cause of action-not released by the Civil Settlement Agreement-of which
the Office has knowledge, including, but not limited to, a prosecution or civil action based on the
Information, the Statement of Facts, the conduct described therein, or perjury and obstruction of
justice. Any such prosecution or civil action may be premised on any information provided by
or on behalf of Practice Fusion to the Office or any government agency at any time. In any such
prosecution or civil action, it is understood that: (a) no charge or claim would be time-barred
provided that such prosecution or civil action is brought within the applicable statute of
limitations period, excluding the period from the Effective Date of this Agreement until its

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termination; (b) Practice Fusion agrees to toll, and exclude from any calculation of time, the
running of the applicable statute of limitations for the length of this Agreement starting from the
Effective Date of this Agreement and including any extension of the deferral-of-prosecution
period pursuant to Paragraph 15 below; and (c) Practice Fusion waives any objection to venue
with respect to any charges in the District of Vermont. By this Agreement, Practice Fusion
expressly intends to and hereby does waive its rights in the foregoing respects, including any
right to make a claim premised on the statute of limitations, as well as any constitutional,
statutory, or other claim concerning pre-indictment delay. Such waivers are knowing and
voluntary, and in express reliance on the advice of Practice Fusion's counsel.
15.

It is further agreed that in the event that the Office, in its sole discretion,

determines that Practice Fusion has violated any provision of this Agreement, including failure to
meet its obligations under this Agreement: (a) all statements made or acknowledged by or on
behalf of Practice Fusion to the Office or any government agency, including, but not limited to
the Statement of Facts, or any testimony given by Practice Fusion or by any agent of Practice
Fusion before a grand jury, or elsewhere, whether before or after the Effective Date of this
Agreement, or any leads from such statements or testimony, shall be admissible in evidence in
any and all criminal or civil proceedings hereinafter brought by the Office against Practice
Fusion; and (b) Practice Fusion shall not assert any claim under the United States Constitution,
Rule 11 (f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of
Evidence, or any other Federal rule, that statements made or acknowledged by or on behalf of
Practice Fusion before or after the Effective Date of this Agreement, or any leads derived
therefrom, should be suppressed or otherwise excluded from evidence. It is the intent of this
Agreement to waive any and all rights in the foregoing respects. In addition, if the Office

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determines that Practice Fusion has violated this Agreement and has failed to cure any such
violation Practice Fusion agrees to admit, in any criminal or civil proceeding initiated by the
Office or Department of Justice against Practice Fusion for the conduct covered in the Statement
of Facts the following assertions: "The Pain CDS described in the Statement of Facts
successfully resulted in increased ERO sales by Pharma Co. X. Based on the higher rate of
opioid prescriptions among providers who received the Pain CDS, the alerts caused tens of
thousands of additional prescriptions for extended release opioids, a substantial portion of which
were paid for by federal health care programs such as Medicare and Medicaid." Provided that
Practice Fusion is in compliance with the Agreement, the assertions in the preceding sentences
are not part of the factual admissions made by Practice Fusion in this matter. Practice Fusion
agrees that, in the event that the Office determines (subject to the notice and cure provisions set
forth in Paragraph 17 below) during the deferral-of-prosecution period described above in
Paragraph 11 (or any extensions thereof) that Practice Fusion has violated any provision of this
Agreement, an extension of the deferral-of-prosecution period may be imposed, in the sole
discretion of the Office, up to an additional two (2) years, but in no event shall the total term of
the deferral-of-prosecution period of this Agreement exceed five (5) years. Any extension of the
deferral-of-prosecution period extends all terms of this Agreement for an equivalent period.
16.

Additionally, as a contractual remedy, Practice Fusion and the Office agree that in

the event that the Government determines that Practice Fusion has breached this Agreement, the
Office may require-at its sole discretion but subject to the notice and cure provisions set forth
in Paragraph 17 below, and in lieu of prosecuting the crimes deferred by this AgreementPractice Fusion to provide stipulated penalties of up to $25,000.00 per day for each day that
Practice Fusion is in breach of this Agreement.

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17.

Should the Office determine that Practice Fusion has violated this Agreement and

prior to pursuing the remedies as described in Paragraphs 14 through 16 or extending the
deferral-of-prosecution period pursuant to Paragraph 15, the Office shall provide written notice
to Practice Fusion of that determination (the "Written Notice"). Such Written Notice shall set
forth: (a) the provision(s) breached; (b) the approximate date of the breach; (c) a description of
the breach sufficient to permit Practice Fusion to cure or respond (as described below); and (d)
an indication of which remedy the Office intends to pursue (prosecution under Paragraph 14,
extension of the deferral-of-prosecution period under Paragraph 15, or Stipulated Penalties under
Paragraph 16). If the Office seeks Stipulated Penalties pursuant to Paragraph 16, the Written
Notice must also include the amount of Stipulated Penalties claimed by the Office as of the date
of the Written Notice. After receiving such Written Notice, Practice Fusion shall have an
opportunity to make a presentation to the Office to demonstrate that no violation occurred, or, to
the extent applicable, that the violation should not result in the exercise of those remedies or in
an extension of the deferral-of-prosecution period, including because the violation has been
cured by Practice Fusion.
18.

If the Office demands Stipulated Penalties, Stipulated Penalties calculated from

the date of breach to the date of payment shall be payable to the United States within fourteen
(14) days, payable according to the same instructions as the Criminal Penalty, or as otherwise
directed by the Office. Practice Fusion agrees that the United States District Court for the
District of Vermont shall have jurisdiction over any action to collect such a penalty. If Practice
Fusion fails to timely make a payment required in this Paragraph, interest (at the rate specified in
28 U.S.C. § 1961) shall accrue on the unpaid balance through the date of payment.

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19.

Practice Fusion agrees that it is within the Office's sole discretion to choose, in

the event of a violation, the remedies contained in Paragraphs 14 and 16 above, or instead to
choose to extend the deferral-of-prosecution period pursuant to Paragraph 15, provided,
however, if Practice Fusion's violation of this Agreement is limited to an untimely payment of
the Criminal Penalty, the Office may elect instead to choose the additional financial penalties set
forth in Paragraph 4 above. Practice Fusion understands and agrees that the exercise of the
Office's discretion under this Agreement is unreviewable by any court.
20.

It is further agreed that in the event that the Office, in its sole discretion,

determines that Practice Fusion has violated any provision of this Agreement, including failure to
meet its obligations under this Agreement: (a) all statements made or acknowledged by or on
behalf of Practice Fusion to the Office or any government agency, including, but not limited to
the Statement of Facts, or any testimony given by Practice Fusion or by any agent of Practice
Fusion before a grand jury, or elsewhere, whether before or after the Effective Date of this
Agreement, or any leads from such statements or testimony, shall be admissible in evidence in
any and all criminal or civil proceedings hereinafter brought by the Office against Practice
Fusion; and (b) Practice Fusion shall not assert any claim under the United States Constitution,
Rule 11 (f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of
Evidence, or any other Federal rule, that statements made or acknowledged by or on behalf of
Practice Fusion before or after the Effective Date of this Agreement, or any leads derived
therefrom, should be suppressed or otherwise excluded from evidence.

Public Statements
21.

Practice Fusion, having truthfully admitted to the facts in the Statement of Facts,

agrees that it shall not, through its attorneys, agents, or employees, make any statement, in

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litigation or otherwise, contradicting the Statement of Facts or its representations in this
Agreement. Consistent with this provision, Practice Fusion may raise defenses and/or assert
affirmative claims and defenses in any proceedings brought by private and/or public parties as
long as doing so does not contradict the Statement of Facts or such representations. Nothing in
this agreement shall restrict Practice Fusion's ability to defend itself in ancillary investigations or
proceedings brought by parties other than the Office and/or the United States Department of
Justice ("DOJ") provided that Practice Fusion may not contradict or deny the facts admitted to in
the Statement of Facts. Any such contradictory statement by Practice Fusion, its present or future
attorneys, agents, or employees, shall constitute a violation of this Agreement and Practice
Fusion thereafter shall be subject to prosecution and/or penalties as specified in Paragraphs 14
and 16 above, or the deferral-of-prosecution period shall be extended pursuant to Paragraph 15
above. The decision as to whether any such contradictory statement will be imputed to Practice
Fusion for the purpose of determining whether Practice Fusion has violated this Agreement shall
be within sole discretion of the Office. Upon the Office's notifying Practice Fusion of any such
contradictory statement, Practice Fusion may avoid a finding of violation of this Agreement by
repudiating such statement both to the recipient of such statements and to the Office within four
(4) business days after having been provided notice by the Office. Practice Fusion consents to
the public release by the Office, in its sole discretion, of any such repudiation. Nothing in this
Agreement is meant to affect the obligation of Practice Fusion or its officers, directors, agents or
employees to testify truthfully to the best of their personal knowledge and belief in any
proceeding. Nothing herein applies to statements made, in litigation or otherwise, by any present
or former officers, directors, agents or employees of Practice Fusion that are made solely in an
individual capacity, and not on behalf of Practice Fusion.

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Compliance Program

22.

Practice Fusion represents that it has implemented and will continue to implement

and maintain an effective compliance program designed to prevent and detect violations of the
Anti-Kickback Statute. In order to address deficiencies in its compliance controls, policies, and
procedures, Practice Fusion shall maintain and implement a CDS compliance program that meets
the requirements set forth in the compliance addendum (the "Compliance Addendum") (a copy
of which is attached as Exhibit D).
23.

It is understood that Practice Fusion shall promptly notify the Office of (a) any

deficiencies, failings, or matters requiring attention with respect to Practice Fusion's adoption,
implementation, or maintenance of the compliance programs described in the Compliance
Addendum; and (b) any steps taken or planned to be taken by Practice Fusion to address the
identified deficiency, failing, or matter requiring attention. Practice Fusion's failure to adopt,
implement, or maintain a compliance program as described in the Compliance Addendum shall
constitute a violation of this Agreement.
Oversight Organization

24.

Practice Fusion will implement the provisions regarding the Oversight

Organization, as required in the addendum attached as Exhibit E.
Additional Compliance Terms

25.

Practice Fusion will implement the provisions and comply with the terms of the

Additional Compliance Terms, as required in the addendum attached as Exhibit G.
Limits of this Agreement

26.

It is understood that this Agreement is binding on the Office, but does not bind

any other Federal agencies, any state or local law enforcement agencies, any licensing

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authorities, or any regulatory authorities. However, if requested by Practice Fusion, or its
attorneys, the Office will bring to the attention of any such agencies, including, but not limited
to, any regulators, as applicable, this Agreement, the cooperation of Practice Fusion, and Practice
Fusion's compliance with its obligations under this Agreement.
27.

It is further understood that the Department of Justice has provided Practice

Fusion with a nationwide release in connection with its conduct described in the Statement of
Facts, as set forth in Exhibit F, and that DOJ shall not, except as otherwise contemplated by this
Agreement or global resolution with the Office, institute additional or other criminal proceedings
against Practice Fusion for the conduct described in the Statement of Facts.

Sale, Merger, or Insolvency of Practice Fusion
28.

Except as may otherwise be agreed by the parties hereto in connection with a

particular transaction, Practice Fusion agrees that in the event it sells, merges, or transfers all or
substantially all of its business operations as they exist as of the Effective Date of this
Agreement, whether such sale is structured as a sale, asset sale, merger, or transfer, it shall
include in any contract for sale, merger or transfer, a provision binding the purchaser, or any
successor in interest thereto, to the obligations described in this Agreement. However, the terms
of this Agreement shall not be construed to apply to that portion of any purchaser's or successor
in interest's assets or operations that are unrelated to Practice Fusion's assets or operations. The
Government shall consider any request by Practice Fusion that the Government, in its sole
discretion, waive the requirement that all provisions in this Paragraph bind Practice Fusion
and/or any of its purchasers or any successors in interest.
29.

Practice Fusion also represents and warrants that it has reviewed its financial

situation, that it currently is not insolvent as such term is defined in 11 U.S.C. § 101(32), and that

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 Case 2:20-cr-00011-wks Document 2 Filed 01/27/20 Page 19 of 23

it reasonably believes that it shall remain solvent following payment to the Government of the
Criminal Penalty. Further, Practice Fusion and the Government warrant that, in evaluating
whether to execute this Agreement, they ( 1) have intended that the mutual promises, covenants,
and obligations set forth constitute a contemporaneous exchange for new value given to Practice
Fusion, within the meaning of 11 U.S.C. § 547(c)(l); and (b) have concluded that these mutual
promises, covenants, and obligations do, in fact, constitute such a contemporaneous exchange.
Further, the Parties warrant that the mutual promises, covenants, and obligations set forth herein
are intended to, and do, in fact, represent a reasonably equivalent exchange of value that is not
intended to hinder, delay, or defraud any entity to which Practice Fusion was or became indebted
to on or after the Effective Date, within the meaning of 11 U.S.C. §548(a)(l).
30.

If within ninety-one (91) days of the Effective Date of this Agreement or any

payment made by Practice Fusion under this Agreement, (i) Practice Fusion commences any
case, action, or other proceeding under any law relating to bankruptcy, insolvency,
reorganization, or relief of debtors or a third party commences any involuntary case, action, or
other proceeding against Practice Fusion under any law related to bankruptcy, insolvency,
reorganization, or relief of debtors (a) seeking an order for relief of Practice Fusion's debts, or
seeking to adjudicate Practice Fusion as bankrupt or insolvent; or (b) seeking appointment of a
receiver, trustee, custodian, or other similar official for Practice Fusion or for all or part of
Practice Fusion's, assets, or (ii) a third party commences against Practice Fusion any case,
proceeding or other action referred to in clauses (a) or (b) above, and the same is not rescinded or
dismissed within 60 days of the date of commencement of such case, proceeding or action,
Practice Fusion agrees as follows:

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 Case 2:20-cr-00011-wks Document 2 Filed 01/27/20 Page 20 of 23

a.

Practice Fusion's obligations under this Agreement may not be avoided

pursuant to 11 U.S.C. § 547, and Practice Fusion shall not argue or otherwise take the position in
any such case, action, or proceeding that (i) Practice Fusion's obligations under this Agreement
may be avoided under 11 U.S.C. § 547; (ii) Practice Fusion was insolvent at the time this
Agreement was entered into; or (iii) the mutual promises, covenants, and obligations set forth in
this Agreement do not constitute a contemporaneous exchange for new value given to Practice
Fusion.
b.

If any of Practice Fusion's obligations under this Agreement are avoided

for any reason, including, but not limited to, through the exercise of a trustee's avoidance powers
under the Bankruptcy Code, the Government, in its sole discretion, may rescind the Agreement
and bring any criminal, civil and/or administrative claim, action, or proceeding against Practice
Fusion for the claims that would otherwise be covered by the release in Paragraph 13 above.
Practice Fusion agrees that to the fullest extent of applicable law (i) any such criminal charge,
civil claim, or other action, or proceeding brought by the Government would not be subject to an
"automatic stay" pursuant to 11 U.S.C. § 362(a) as a result of the charge, case, action, or
proceeding described in the first sentence of this Paragraph, and Practice Fusion shall not argue
or otherwise contend that the Government's criminal charge, claim, action, or proceeding is
subject to an automatic stay; (ii) Practice Fusion shall not plead, argue, or otherwise raise any
defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any
charge, claim, action, or proceeding that is brought by the Government within sixty (60) calendar
days of written notification to Practice Fusion that the release has been rescinded pursuant to this
Paragraph, except to the extent such defenses were available on the Effective Date of this
Agreement; and (iii) the Government has a valid claim against Practice Fusion in the amount of

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 Case 2:20-cr-00011-wks Document 2 Filed 01/27/20 Page 21 of 23

the Criminal Penalty and the Government may pursue its charge, claim in the case, action, or
proceeding described in the first sentence of this Paragraph, as well as in any other case, action,
or proceeding.
c.

Practice Fusion acknowledges that the agreements in this Paragraph are

provided in exchange for valuable consideration provided in this Agreement.
Notice

31.

Any notice or report to be provided to the Office under this agreement shall be

made by personal delivery, overnight delivery by a recognized delivery service, or registered or
certified mail, addressed to:
United States Attorney's Office for the District of Vermont
Attn: Civil and Criminal Chiefs
United States Courthouse and Federal Building
Post Office Box 570
11 Elmwood Avenue, 3d Floor
Burlington, VT 05402-0570
32.

Any notice or report to be provided to Practice Fusion under this agreement shall

be made by personal delivery, overnight delivery by a recognized delivery service, or registered
or certified mail, and email addressed to:
ATTN: General Counsel
Allscripts Healthcare Solutions, Inc.
222 Merchandise Mart Plaza, 20th Floor
Chicago, IL 60654
Legal.notices@allscripts.com
Joshua S. Levy
Aaron Katz
ROPES & GRAY LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
Public Filing

21

 Case 2:20-cr-00011-wks Document 2 Filed 01/27/20 Page 22 of 23

33.

Practice Fusion and the Office agree that, upon the submission of this Agreement

(including the Statement of Facts and other attachments) to the Court, this Agreement and its
attachments shall be filed publicly in the proceedings in the United States District Court for the
District of Vermont.
34.

The parties understand that this Agreement reflects the unique facts of this case

and is not intended as precedent for other cases.
Execution in Counterparts

35.

This Agreement may be executed in one or more counterparts, each of which shall

be considered effective as an original signature. Further, all facsimile and digital images of
signatures shall be treated as originals for all purposes.

d1jh'

Dated at Burlington, in the District of Vermont, this_ day of January, 2020.
Respectfully submitted,
UNITED STATES OF AMERICA
CHRISTINA E. NOLAN
United States Attorney

By:

~~~~~
~STER
MICHAEL P. DRESCHER
Assistant U.S. Attorneys
P.O. Box 570
Burlington, VT 05402-0570
(802) 951-6725
Owen.CJ .F oster@usdoj.gov
Michael.Drescher@usdoj.gov

Accepted and agreed to:

Eric L;;obson, Esq.
Secretary

=

 Case 2:20-cr-00011-wks Document 2 Filed 01/27/20 Page 23 of 23

Practice Fusion, Inc.

evy, Esq.
Aaro
atz, Esq.
Patrick Welsh, Esq.
Ropes & Gray, LLP
Counsel to Practice Fusion, Inc.

23