Free Guide Helps Physicians Debug Bad EHR Contracts

September 29, 2016

Frustrations with electronic health record (EHR) systems sometimes arise not from the software itself but from bugs in the sales contract.

Such contractual bugs may allow a vendor to:

  • Remain unaccountable for excessive system downtime;

  • Lock physicians out of their patient data during a payment dispute; and

  • Prevent physicians from sharing a software glitch with a patient safety group.

To help physicians cut the best deal possible, the US Department of Health and Human Services (HHS) this week published a free online primer, titled "EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print." It is specifically the handiwork of the HHS Office of the National Coordinator for Health Information Technology (ONC), created to help doctors digitize.

One of the first lessons in the 55-page guide is that EHR vendors offer "standard form" contracts full of provisions that give physicians the short end of the stick. The guide identifies problematic boilerplate and recommends replacement terms that physicians should seek to include.

For example, physicians should ferret out language that allows an EHR vendor — especially one that operates in the cloud — to block patient data or even terminate the service over nonpayment or some contract fracas through what's commonly called a "kill switch." Some contracts may omit this language, but vendors may feel free to flip the kill switch anyway.

Accordingly, the ONC guide offers substitute language that prohibits the inclusion of such "disabling technology" in the EHR system. It also suggests terms for resolving contract disputes in an orderly manner without disrupting patient care.

Loosening Gag Clauses

Another common problem addressed by the ONC guide are "gag clauses" often found in standard-form contracts. They prevent physicians from sharing EHR usability or safety issues with third parties, perhaps in the course of research, or even making disparaging remarks about the technology. Vendors are understandably concerned about losing a grip on their intellectual property, but physicians complain that their secrecy has gone too far.

ONC recommends rewriting the standard form contract to allow disclosures about software problems for the sake of patient safety, quality improvement, and public health, including "the reporting of EHR-related adverse events, hazards, and other unsafe conditions" to government agencies, accrediting bodies, patient safety organizations, and the like.

Good contracts also should hold vendors' feet to the fire when it comes to their responsibilities toward the customer. Physicians should negotiate, for example, for an uptime warranty that commits the vendor to limit the amount of scheduled and unscheduled downtime. Likewise, cloud-based EHR vendors should agree to maintain a disaster recovery plan that provides for data backup when a flood or tornado destroys a main server.

A discussion of EHR contracts wouldn't be complete without mentioning the federal government's meaningful-use incentive program. ONC says that as long as vendors are maintaining EHR software for a customer, they should ensure that it continues to satisfy meaningful-use requirements for certified EHR technology, lest customers fall out of compliance with the program.

ONC advice about EHRs goes beyond negotiating a fair contract. This week the ONC also published a free online guide to choosing, implementing, and using EHRs called the "Health IT Playbook." It delves into such diverse topics as secure messaging, telemedicine, clinical data registries, and data security and privacy.

Both guides are available on the ONC website.

Follow Robert Lowes on Twitter @LowesRobert

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