The Office of the National Coordinator for Health Information Technology (ONC) recently released guidelines titled, “EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print” to assist healthcare providers in selecting electronic health record (EHR) vendors and in negotiating and understanding EHR contracts. 

Why is this important?

In October 2015, the ONC established a 2017 goal of complete “interoperability” among healthcare providers (doctors, clinicians, labs, hospitals, and pharmacies) and patients. This will allow systems and devices to seamlessly exchange, share and interpret data. In order to achieve interoperability, healthcare providers must negotiate complex, costly and potentially risky technology agreements with EHR vendors. 

Can providers really negotiate EHR contracts?

Yes! Start the EHR selection process early and understand the advantages and disadvantages of various EHR systems. Knowledge is power in contract negotiation. Experienced counsel can help providers understand the universe of EHR, the future of health information exchange and interoperability. 

Some key provisions that should be negotiated:

• Service Level Agreements (SLA) and Service Performance – Uptime guarantees and remedies may be insufficient to cover actual and consequential damages. SLAs typically do not cover chronic downtime.
• Data Protection – Consequential damages are usually excluded. EHR vendors typically do not offer transition services and may charge a hefty price to export data in valuable formats.
• Security and Privacy – Indemnification and limitations of liability should account for potential costs associated with breach of privacy or security obligations.
• Technical Implementation – Providers should never rely on the oral assurances of an EHR vendor. Each EHR contract should allocate responsibility for installation, testing and specific maintenance in writing.
• Providers should invest in an EHR system that can effectively meet future needs for interoperability. With so many considerations, providers should also rely on experienced counsel to negotiate a contract that protects their interests.