Five Tips to Demystify Your EHR Contract

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Choosing a new electronic health record system (EHR) and then negotiating the acquisition of that EHR system is no simple feat, but nonetheless, crucial to the successful performance of any healthcare organization. While these technologies are undoubtedly helpful when it comes to increased performance and convenience, they can sometimes disappoint. This guide is to assist in understanding EHR contracts and how to select the best EHR vendor to avoid any disappointments.

1. Research

One must be properly prepared before making negotiations. Research the market, competitor vendors, products and services, along with prices and conditions. Have a solid vision for how the new EHR will assist or solve business needs. Business needs should be supplied from administrative, IT, clinical and other important staff representation from within. Think of a list of priorities beforehand that should be included in the EHR, as well as understand health IT certification and security and privacy requirements that apply to both state and federal laws. Selecting EHR technology that is certified under the ONC Health IT Certification Program ensures the EHR meets the technological capability, functionality and security standards of the Secretary of the Department of Health and Human Services.

2. Contracting

Negotiate carefully to minimize issues later on and also create a more beneficial and healthy relationship with the EHR vendor. Vendors are typically expected to offer or be willing to negotiate with your terms. However, there are some vendors who operate under “standard form” contracts, which means that the terms and conditions are prepared by the vendor for the supposed contract. This gives the provider very little room to negotiate “better” terms, ultimately resulting in an “all-or-nothing” kind of situation oftentimes. It may be a good idea to ask the vendor for information about its contracting situation before settling on one. If one chooses an EHR vendor with standard form practices, it’s important to understand the terms, rights and obligations involved. If you are in a position to negotiate, first prioritize the terms that are important to the end goal and which terms can be compromised on. Evaluate the level of negotiating leverage available for both sides, which will depend on many factors, such as the vendor’s contract terms, state law and the provider’s conditions.

3. System Expectations and Performance

EHR systems should meet the provider’s expectations in delivering operational efficiency, enhanced patient care, reduced errors and decreased costs among many more benefits. To accomplish this, the EHR must not only meet preferred features, but meet baseline standards. Once these are agreed upon, it is critical that these service and performance obligations are specifically included in this contract. It is also extremely important to note that all specific express warranties regarding specific functions and features must be included in the EHR contract or it could be difficult to enforce in the future. Also make sure that the software functions as stated in the documentation (white papers, manuals, etcetera). If it does, make sure this documentation is sufficient to serve as the basis of an express warranty. A crucial feature, if not the most important, is the level of security for patient data. The information held in the EHR will be relied on to provide safe and quality care to patients. If the integrity of this data is compromised, so are many individuals’ health. EHR-related errors can lead to exactly this. Make sure there is a contract term included to obligate the vendor to assure the accuracy and reliability of patient data to avoid these potential problems.

4. Intellectual Property Rights

The contract between the provider and EHR vendor will give the provider certain rights to use specific software and possibly other intellectual property. The rights of the provider will be limited solely to the conditions included in the contract. If the EHR is used for operation on a provider’s own equipment or on hosted equipment that has been arranged, the provider needs to receive a license from the vendor to use all software, documentation and other IP that may be included in the EHR.

5. Managing Risks and Liability

There are possible errors that can happen on behalf of the EHR program that can affect many patient records, billing information and other important factors. If the vendor’s liability under the EHR contract is limited to only certain kinds of damage or a low liability cap, it’s possible that the vendor may only receive a small percentage of their financial loss back, even if it wasn’t technically the vendor who caused the damage. This means there needs to be a thorough risk management assessment to take place. The results of this assessment will then provide a base for what conditions need to be included in the EHR contract. The vendor and provider also need to agree on where the liability will fall regarding risk factors. This is something that should always be negotiated on behalf of the vendor, as the risks can be extremely damaging should something occur.