How are EHR Contracts Getting More Difficult?

EHR contracts contain an increasing array of complicating structures and dense terms that offer fewer and fewer commitments to your practice.  The problematic terms include:

·         Broad disclaimers further distance EHR vendors from any responsibility or liability that may result from the use of their products regardless of the cause:

o   Many contracts offer no warranties and sell the products “as is.”  Thereby, they have no obligation to fix problems or maintain product relevancy.  For example, a disclaimer that the product is offered with no representation of fitness for any specific purpose provides little to compel a vendor to address an issue or problem.

o   Many contracts include practice indemnification of the software vendor for a variety of issues.  For example, some contracts do not warrant the clinical content or the ability of the software to record information, but pass risk of any problems to the practice through broad indemnity clauses.  On a similar note, some business associate agreements have the practice indemnifying the business associate for inappropriate disclosures committed by the business associate.

o   A number of EHR vendors will not commit to support HIPAA Security or Privacy standards or Certified EHR status. 

·         Jointly marketed EHR, PMS, and/or patient portal products may require separate agreements for each product.  Each agreement includes separate terms with frequently conflicting agendas and conditions.  In the event of a problem, you could not only get caught between the different companies, but have contracts that specifically disavow any responsibility for the actions and interfaces with any “third party products.”  For example, some EHR contracts put the responsibility on the practice to maintain interfaces with any other products, including the partner PMS

·         More restrictive Agreements to protect their products and businesses.  EHR vendors are rightfully concerned with protecting their intellectual property.  However, many EHR contracts include terms that could hamper the ability of the practice to operate.  For example, many contracts prohibit disclosures about the EHR to any non-employee.  Such terms trigger technical contract violations when the practice provides EHR access for chart review or to demonstrate the EHR to prospective physicians. 

Interestingly, we are typically told that the legal terms do not represent the commitment of the vendor, and that they could not stay in business if they were not responsive and effective.  However, the legal terms of the contract frames the relationship with the vendor.  In the vast majority of cases, your practice will be dealing with a much larger and more sophisticated EHR vendor.  In order to protect your practice and preserve your patient records, you need a balanced contractual relationship.

Your practice should be wary of any PMS/EHR/Patient Portal contracts and have the contract thoroughly reviewed by a qualified professional.  In general, vendors are willing to accommodate issues you raise to get your business.  Otherwise, you are committing to a contractual relationship that puts your practice in a difficult situation that could cost you money and disrupt patient care.

Should ICD10s Affect Your EHR Strategy?

On October 1, 2013, practices will start submitting claims using the ICD10 coding system.  Any practice planning on using EHR systems to facilitate the transition to ICD10 needs to take a close look at the practicality of implementing an EHR in time to support ICD10 coding.

Will ICD10s be an EHR Challenge?

In theory, EHR systems will make ICD10 coding tolerable.  However, ICD10 coding presents a wide range of challenges to EHR vendors and users. 

Does Your EHR Present What Your Recorded?

With paper exam notes, the doctor and staff record information and the note reflects what they recorded.  Unfortunately, EHR based notes may not be as direct.

Why Are Patient Portals More Important Than You Think?

Patient portals facilitate the exchange of information between patients and physician practices.  What was once considered a nice option for your EHR is becoming a necessity.  Unfortunately, not all patient portals offer the same features.  Failure to acquire an adequate patient portal could limit your EHR benefits and increase your costs.

What ACO Features Are Needed in an EHR?

Most EHR systems are based on strategies that predate accountable care organizations (ACO) and Certified EHR standards.  The key EHR requirements for ACOs are the ability to electronically exchange patient information, support provider collaboration, and monitor patient care.  The EHR focus to date has been on creating patient exam notes and specifically meeting the Evaluation and Management documentation standards.  In many cases, EHR products that have evolved to date do not adequately accommodate the operational or management needs of the ACO structure.

Why You Need a Clinical End of Day Procedure?

At the end of the working day, every healthcare organization performs a reconciliation of fee tickets and receipts to assure that all charges and payments were properly posted and applied.  This effort assures the integrity and accuracy of the financial records.  A similar process is needed to maintain and assure the integrity of your EHR based patient information.

Do You Know The Paper Chart to EHR Transition Risks?

I co-authored a case study on Medical Professional Liability (MPL) Risk with Susan Lieberman, Vice President of Risk Management for Conventus Inter-Insurance Exchange.  This case study highlights the importance of making good transition decisions as well as the substantial number of MPL Risks and, more importantly, risk reduction strategies you need to use to avoid serious problems in the future.

Can Your Practice Afford Vendor Best Practices?

In addition to the pressure on practices to implement EHRs, EHR vendors have seen a surge in activity that is stretching, if not breaking, their ability to implement and/or support their products.  In order to deal with the accelerated adoption of EHRs, a number of vendors have developed “best practice” guides.

This cook book approach to EHR implementation helps the vendors standardize use and, in some cases, use less experienced people to put in an EHR.  Such “best practices” may implement your EHR in a way that may not be most effective for your organization.

Why Should Your EHR Be “In Service” by December 31, 2011?

As we move further along on 2011, you should seriously consider your plans for the year and the most advantageous (and soon to be extinct) tax benefits of an EHR investment in 2011 or 2012.

What are the Critical EHR Technology Infrastructure Issues?

The loss of access to you PMS may be disruptive, but your will still be able to practice medicine.  However, the loss of your EHR will stymie you clinical operation and pose serious challenges to continue serving patients.  In order to prevent the loss of your EHR requires appropriate hardware design and management commitment to invest monies to mitigate the chance of an EHR failure.

What are the Issues with Clinical Content?

Clinical content refers to the various checklists, documents, and forms that address an area of medicine when using an EHR.  For example, a pediatric practice would be interested in documentation tools for a newborn visit. Not all EHRs have clinical content for all areas of medicine.  For example, some EHRs have clinical content for internal medicine, but lack the details needed for dermatology or cardiology.

A disturbing number of practices have failed to analyze the clinical content of their EHR and are distributing exam documents and other information that do not adequately or accurately document patient care.  In the more serious situations, EHR clinical documents misrepresent the care provided and the patient’s condition.  For example, one practice was distributing exam notes that had inappropriate gender information for all patients.  In another situation, a specialist included extensive ROS information on the patient’s cardiovascular system which was not performed and not the specialist’s area of expertise.  Such problems could precipitate a wide array of care, insurance, and medical professional liability issues.

How Do You Provide Technical Support for an EHR?

Any EHR effort requires a plan to support the EHR technology.   Some practices have created an information technology (IT) position or even a department.  Unfortunately, many practices overspend on IT support that is more than they need technically, but less than they need operationally. 

What Are the Old EHR to New EHR Conversion Issues?

Data conversion from an old EHR to a new EHR is challenging and problematic.  In most cases, old contracts (and unfortunately many new contracts) do not obligate the current EHR vendor to provide the patient’s data or support the conversion.  Indeed, many practices are left to deal with the data that the current vendor “can” provide and the loading of data that the new vendor is ”willing”  to support. 

The gap between the old EHR information and the new system could pose a variety of operational issues and call into question continuity of patient care and even your stewardship of the patient medical record.  Indeed, contextual issues due to missing information and placement in the new EHR may complicate clinical decision making.

What Should You Worry About on Transitioning from Paper Charts to an EHR?

The transition from paper to EHR is a major policy decision that can have repercussions on patient service, your operations and even your medical professional liability (MPL.)  Unfortunately, many practices are not taking the time to analyze their options and responsibilities from a patient care and compliance standpoint.  In order to set the correct framework for your effort, you should think about how you would answer questions about your paper chart transition strategy in order to prove due diligence in maintaining the patient record and/or in the transition from the paper chart to your EHR.

ISSUE:  Disposition of the Paper Chart in the Move to EHR -

What MPL Issues are Associated with Meaningful Use (MU)?

Any transition of patient clinical records presents potential problems and issues that could affect medical professional liability (MPL).  Attainment of Meaningful Use is no different.

The Meaningful Use (MU) Criteria frames the use of a Certified EHR that enables a practice to qualify for the Medicare and Medicaid incentive payments.  Eligible Providers must fulfill 15 Core Measures and 5 of 10 Menu Set Measures to attain MU (For a complete list, go to https://www.cms.gov/EHRIncentivePrograms/Downloads/EP-MU-TOC-Core-and-MenuSet-Objectives.pdf ).  Many measures are associated with level of use based on a defined way of counting eligibility and usage.  For example, clinical summaries are to be provided for 50% of all office visits within 3 days of the visit to meet the clinical summary measure.

Your MU strategy should consider several MPL issues:

How Can You Attain Meaningful Use?

Attaining Meaningful Use (MU) is not an event, but a process.  As a practical matter, MU should be organized around packages of MU criteria in a sequence that leads to achieving Meaningful Use.  For example, it would not be practical to provide patients with electronic access to their patient records (MU Menu Set 5), until you maintain an electronic copy of patient health information (MU Core Measure 12). 

Meaningful Use can be divided into three stages:

Why Should You Worry About Your Next EHR Now?

While you are looking for a new EHR to qualify for Meaningful Use, it is not too early to think about what you are going to do when you stop using this new EHR and move to the next generation of EHR products in (hopefully) a number of years down the road.

The significant and troublesome barriers to moving from one EHR to another and the vendor issues that impede such moves are a strategic concern for anyone buying an EHR.

Is Your Practice Ready for an EHR?

From Medicare/Medicaid incentives to EHR industry ads, it is hard to cut through the hype and determine if your practice is even ready to try to select and implement an EHR.

Implementing an EHR is a transformational exercise for any practice that requires redesigning every aspect of charting, clinical workflow and interaction with patients.  However, in too many cases, practices approach EHR projects without considering the organizational commitment needed to succeed.

Governance and Management –

What is a Certified EHR?

In order to receive the Medicare or Medicaid stimulus monies, you have to attain Meaningful Use using a Certified EHR.  One would think that all Certified EHRs offer a high level of capability and functionality.  Unfortunately, you would be wrong.

How Do You Organize EHR Transitions?

EHR implementation is not an event as much as a process.  The key to implementation is managing a variety of transitions from the paper chart to the electronic chart.  Your transition strategies and decisions could have repercussions on patient care and malpractice risk.

EHR transition must be based on sound clinical decision making and coordination of dramatic changes to clinical operations.  In too many cases, practices let the technological issues dominate EHR deployment and relegate clinical issues to an afterthought.

How Can You Plan and Design Your EHR Effort?

Any EHR project must be based a clear commitment in time and resources by management and doctors.  In too many cases, EHR projects focus on the technical project aspects rather than the transformational strategies and commitment needed to succeed.  In the final analysis, the project must be supported by effective empowerment and governance.

Planning, analysis and design is woefully inadequate for most EHR projects.  As a practical matter, practices need to create a clear and complete plan backed by good project and implementation design efforts to succeed.  The components that you need to address include:

Implementation Plan –

What is an Additional Financial Consideration for EHR Adoption in 2011?

Until December 31, 2011, EHR investments are eligible for 100% Bonus depreciation.  100 % Bonus Depreciation allows a practice to completely write off their hardware and software EHR expense without limit in 2011.  (Bonus Depreciation drops to 50% in 2012 and reverts to regular depreciation in 2013.)  Another interesting aspect to Bonus Depreciation is that Bonus Depreciation is not limited to an offsetting profit.  Without getting into too much number crunching, that means that you may be able to generate positive cash flow depending on financing etc.

For many practices, a 2011 EHR investment may present a significant tax benefit.  However, that means that you need to move forward quickly since the EHR must be placed in service by the end of 2011 to qualify for 100% Bonus Depreciation, and by December 31, 2012 to qualify for 50% Bonus Depreciation.

Note that an EHR placed in service is not the same as attaining Meaningful Use and qualifying for the Stimulus Incentives.

© Sterling Solutions, 2011

What EHR Contract Issues are Important?

EHR contract negotiations should based on the fact that your practice, and not the vendor, is responsible for maintaining your patient records.  Anything that could inhibit your access or use of patient information will cause you problems and may compromise patient health.  Unfortunately, most EHR contracts do not recognize your obligations or accommodate your situation.

Contracting for an EHR actually consists of three portions: the business deal, key contract issues and contract details.  This article will focus on essential business issues and key contract issues.

What are the Key Issues in Selecting an EHR?

The key difficulty in selecting an electronic healthcare record (EHR) is that few practices have a clear vision of what the EHR should have and what constitutes an effective EHR.  With several hundred potential EHR options, the average practice is faced with a dizzying array of options and products.

Surprisingly, the EHR product selected can affect medical professional liability (MPL.)  Not all EHR products are the same or have the same capabilities.  If you buy an inappropriate product, you may have to make operational and management compromises that affect how well you track and administer patient care.  In order to avoid such risks, you need to purchase a product that effectively handles three key needs:

Why are $640 Million in Federal Funds Aimed at Encouraging EHR Success Anti-Competitive?

Over half of the healthcare information technology regional extension centers (HITREC) are undertaking activities and establishing relationships that don’t appear to support the notion of unbiased advice and avoiding a conflict of interest.  Federal funding of over $640 million to encourage the deployment of electronic health records (EHR) by primary physicians is being used by many HITRECs in ways that will stifle innovation and bar new companies and innovative products from the exposure needed to improve health care.