A new EHR contract negotiation guide will help providers avoid some of the lesser known pitfalls of EHR implementation, the Office of the National Coordinator (ONC) says. With more and more providers replacing their EHRs – and a surprising number of them losing access to their patient data once their original agreement ends – the guide is a timely reminder that meaningful use has created intense competition among developers, not just improved patient care.
An EHR contract isn’t just between a developer and a provider. It’s also between the provider and its patients. Patients are the ultimate beneficiaries of an EHR, and they’re the ultimate losers when their health information is lost or unavailable due to a spat between lawyers.
“[Patients] may be harmed by what the EHR technology developer or you do or fail to do,” the guide states. “These third parties typically do not have the right to sue for breach of contract under the contract itself because they have not signed it and are not parties to it. However, they may have the right to sue the EHR technology developer and/or you for injuries they suffer as the result of negligence, patent infringement, or other ‘acts or omissions’ associated with the EHR system.”
“Despite the potential need to transition between EHR technologies, some standard EHR technology developer contracts fail to provide for termination and wind down services,” the guide warns. “Thus, how your contract addresses the transition from one EHR technology to another should be well understood.” While it may seem like common sense to think about what happens after, many providers are so caught up in the costs and disruptions involved in implementation that they don’t want to think about contract terminations and having to go through the process all over again.
But this oversight can lead to real financial impacts, not to mention patient perceptions of a provider’s ability to deliver quality care. Milwaukee Health Services recently found itself embroiled in a legal fight to restore its patients’ data after the end of a contract, with the EHR company demanding a substantial “access fee” for the right to view electronic records stored by the company’s servers. And the health system isn’t the only one complaining about this new problem.
“When I quit with my former EHR company, they took away my ability to access my data,” New Jersey neurologist Dr. A.R. Scopelliti recounted to EHRintelligence. “They wanted me to continue to pay for the software every month, even though I wasn’t using it just to access the data. Questions like that need to come up before you sign anything. That should be the first question for a user. If you get involved with a company that takes away access, now you’ve got to pay for two software packages, which is insane. It’s almost like you’re being extorted, and it makes it cost-prohibitive to even start investing in EHRs.”
The ONC guide suggests that providers hammer out the provisions of the key termination clause, including what transition services a developer will offer, and what fees may be involved for continued access to data stored in a proprietary format.
“It may be impossible to predict exactly what these transition services will involve, but it is important to at least obtain the EHR technology developer’s general agreement to assist,” the ONC says. “Contract terms that support the transition may speed and simplify the transition for what can be a very time-consuming, expensive, and difficult process.” Source
