The decisions don’t end after deciding on an EHR system for your medical practice. An EHR contract is an important and legally binding document, and it’s absolutely essential to consider every line of fine print before accepting the terms. O’Toole Law Group founder William O’Toole strongly believes that contract terms should be one of the top criteria in the EHR selection process.
Consulting with a lawyer before you sign is the best way to avoid difficult and expensive problems in the future. The following five issues arise frequently in EMR/EHR contracts, which are being rushed to execution by many practices that are aiming to qualify for federal funding under ARRA/HITECH. This is by no means an exhaustive list, but it aims to shed light on a few of the most frequent contract issues.
1. The EHR may not have the required certification. In order to qualify for federal funding under the ARRA’s Meaningful Use requirements, your EHR must be certified. Certification isn’t a totally black-and-white label, however – an EHR could be certified for the present but that certification could be withheld later on in the reimbursement period. The vendor is responsible for maintaining certification, so it’s important to determine for exactly how long the certification is guaranteed.
2. Your EHR vendor cannot guarantee that you will qualify for Meaningful Use. Meaningful Use – that is to say, your meaningful use of the EHR – is determined by you and your practice. Simply buying and setting up the EHR does not mean that you will qualify for reimbursement unless you follow the legal requirements and use it appropriately.
3. Your contract should include training time and support. Your staff will not be able to use the EHR system effectively without proper training, and if your contract does not guarantee a certain amount of training time (as well as specify exactly how and where the training will take place), your practice could be in trouble. Similarly, you will undoubtedly run into problems and your contract should specify support options for both day-to-day problems and long-term EHR product development by the vendor.
4. The EHR may not be guaranteed to be up and running by your deadline. If the EHR system is not ready to use in time for your Meaningful Use deadlines, you will certainly run into problems and lose reimbursement. While the vendor can’t guarantee a timeline for the work required of your practice, they should be able to promise timely delivery of all materials and support necessary on their part.
5. You could be surprised with licensing fees if you don’t carefully consider what type of license you’re paying for. In general terms, the license agreement with your EHR vendor could be one of two types: a perpetual agreement under which license fees are paid once up front, or a temporary SAAS-type license that requires ongoing payments and expires once your contract ends. Though an SAAS license may be less expensive initially, your costs could increase if you choose to stay with that same EHR vendor after the contract ends. A good legal representative can help you negotiate escalation amounts for the end of your contract.
About O’Toole Law Group
William O’Toole founded the O’Toole Law Group, specializing exclusively in healthcare information technology, following his long tenure as Corporate Counsel at Medical Information Technology (MEDITECH). Known and respected by executives, attorneys and consultants throughout the healthcare industry, O’Toole now represents healthcare provider entities and technology companies in all aspects of technology acquisition, development and distribution and stands among the most experienced and successful negotiators in the HIT industry.
For further detailed information on these and other hot topics regarding EHR contracts, see the popular white paper offered by O’Toole Law Group, entitled Selection and Negotiation of EHR Contracts for Providers (pdf).