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.