ONC Offers Guide To EHR Contracting

Posted on October 5, 2016 I Written By

Anne Zieger is veteran healthcare consultant and analyst with 20 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. Contact her at @ziegerhealth on Twitter or visit her site at Zieger Healthcare.

Last year, the PinnacleHealth health system saw a series of dangerous technical failures take place which put patients at risk. Some patients weren’t accurately tracked, one patient’s blood pressure dropped dangerously after allegedly getting the wrong medications at discharge, and in another case, a physician couldn’t place the pharmacy order for newborn to receive an anti-bleeding dose of vitamin K.

Pinnacle has since sued Cerner, claiming that the Siemens EHR it uses was the source of the problem. (Cerner bought Siemens’ health IT assets in early 2015.) And since the lawsuit was filed, the details of the alleged problems are now public knowledge.

But if the contract between Siemens and the health system is a typical one, it’s possible Pinnacle was legally barred from discussing the problems until it filed the suit. And if the problems Pinnacle has outlined are due to technical problems on Siemens’ end, other patients might have been at risk until the suit was filed.

Hoping to help providers avoid being put in such a difficult position, the ONC has released a new guide designed to help them negotiate EHR contracts effectively. The guide, “EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, And Understanding The Fine Print” offers a truckload of detailed legal recommendations designed to help providers get into the right contract with their EHR vendor.

The dense 56-page guide offers providers advice on every step of the contracting process, including what to do before they sit down with their vendor of choice. It kicks off with a discussion of how to plan for your EHR purchase or upgrade, noting that the provider should be well prepared before they consider making an IT investment.

Providers need to take several steps before they proceed, it notes, including researching the EHR market, assessing their organization’s readiness to implement EHR changes, developing a vision and plan for how the system will support their needs and creating a checklist of high-priority features they want to have in place.

It also offers sample contracts for providers to review and an overview of standard contracts vendors use, identifies language vendors might use that could cause harm and supplies substitute language they should seek to include.

For example, the guide warns providers that some vendors might block access to patient data if there’s a contract dispute or if their bill isn’t paid. This approach is known as a “kill switch.” As a result, they note, providers should introduce contract language that bars the use of such “disabling technology” in their system. The guide also offers terms providers can adopt for handling contract disputes effectively without impacting patient care.

The guide also addresses another widespread problem vendor contract issue faced by providers, the so-called “gag clauses” found in standard-form contracts. These gag clauses can come in many forms, but common clauses might prevent physicians from discussing EMR usability and safety issues with third parties or making negative comments about the technology.

In its recommendations, the ONC strongly advises that providers rewrite standard contract language to permit them to share information on problems with the EHR. That includes sharing information when it is for the purposes of patient safety, quality improvement, and public health. In particular, this language should allow sharing of the EHR-related hazards, adverse technology events or other unsafe conditions, it points out.

Obviously, physicians should not rely on a general guide exclusively when signing a contract with their EHR vendor. But while it’s a bit late to the game, the ONC guide seems likely to prove helpful to many practices which might otherwise come to the contracting table poorly prepared.