Key EHR contract terms physicians need to understand

As more physicians adopt electronic health records (EHRs) at their practice, it’s clear not all are satisfied with their current systems. Recent market surveys show that one in five physicians may switch to a different vendor. Those physicians will not only need a solid understanding of their current vendor contract, but many will also need help negotiating their next one.

The Office of the National Coordinator (ONC) for Health Information Technology at the Department of Health and Human Services (HHS) has made contract negotiations a little easier. The office has released a guide for healthcare providers that explains key contract terminology and how certain provisions could impact a physician’s practice.

But the office emphasizes that this guide is not a substitution for professional legal advice. “Each healthcare organization presents its own unique circumstances. Purchasers should consult an experienced attorney for assistance in contract negotiations,” the report advises.

Here are three of the seven contract terms the report examines:

• Limitation of Liability: When claims arise, a physician’s contract with their vendor may include a financial cap for damages and exclude certain types of damages. “Limitations of liability are a common business practice to limit the financial risk of the EHR technology developer for claims that might arise from problems with the EHR system,” the guide says.

• Dispute Resolution: If a dispute between the vendor and physician arises, this provision will determine if it must be settled by litigation or arbitration. “The dispute resolution provisions of an EHR contract are among the most important to ensure continuity of patient care and business operations,” the guide says.

• Termination and Wind Down: These components are critical for physicians who want to switch EHR vendors, while not disrupting their access to patient data. “Despite the potential need to transition between EHR technologies, some standard EHR technology developer contracts fail to provide for termination and wind down services,” the report says. “Thus, how your contract addresses the transition from one EHR technology to another should be well understood.”

The ONC guide, which was created by Westat, contains explanations of four other legal terms: Indemnification and Hold Harmless; Confidentiality and “Non-disclosure” Agreements; Warranties and Disclaimers; and Intellectual Property Disputes.