Business Dictionary defines a contract as an agreement between two parties that is “voluntary, deliberate, and legally binding.” It goes on to explain that, “while all parties may expect a fair benefit from the contract…it does not follow that each party will benefit to an equal extent.” What does this mean?
What this definition is saying is, just because you have a contract, doesn’t mean the terms of the contract are always in your best interest. That’s why it’s critical for you to know exactly the contract says, as well as what it doesn’t say. For healthcare providers, this is especially true when signing electronic health records (EHR) contracts.
To help navigate an EHR contract, there are certain essentials you’ll want to be addressed. These can be broken down into four main categories: adherence to system performance, adherence to EHR safety, assignment of database control, and responsibilities in risk and liability.
Adherence to System Performance
Guidance Consulting Inc. calls system performance (and the monitoring of such system) “central to productivity.” In other words, if your EHR system does not perform optimally, running at full speed and working the way it was intended and expected, you and your staff are going to have a difficult time completing your tasks efficiently. It’s ultimately going to slow you down, if not stop your processes completely.
To help avoid this type of issue, it’s important that your EHR contract has certain express warranties contained within. These include:
• Guaranteed data availability, ensuring that you always have access to your patient’s health records, billing information, and scheduling systems;
• Guaranteed uptime reliability, so you can rest assured that your system is operational when you need it to be;
• Consistent operational speeds, which means that less time will be spent waiting for a slow or non-responsive system and more time will be spent actually working; and
• No undisclosed expenditures, making it possible to stay within your budget and not finding yourself in a position where you must navigate your way through an unexpected financial surprise.
Reliability in system performance also references support services provided by the EHR provider. For instance, if you have any type of issue with your EHR, you want to know that it will be resolved quickly, so make sure it stated in your contract.
Additional support services that should be described are escalation support schedules (sometimes denoted as ESS). This is essentially a plan that ensures that the right people are notified at the right time in the event of a support issue. The ESS also requires a support documentation system or “paper trail” that describes what actions have been taken in an attempt to resolve the issue. Not only does this protect you by showing that you’ve followed the necessary steps in an effort to take care of the problem, but it also keeps you from having to repeat what’s been done in the past in the event that you’re dealing with an ongoing issue.
Adherence to EHR Safety
When purchasing a new EHR, it’s also important that it adhere to certain safety standards. One way to check for this is to review the contract for any language about the processes in place to quickly and easily identify potential problems. The sooner you realize something’s gone wrong, the fewer corrections you’ll likely have to make and the fewer records will have been affected. This makes safety a priority which saves you tremendous frustration and works in the future.
EHR safety also encompasses the testing of system updates. If you’ve ever had a computer or cell phone update and suddenly developed a “quirk” or “bug,” then you already know maddening this can be. As a healthcare provider, you need to know the EHR updates are going to work as intended, providing you seamless access to all the data you have stored.
Finally, check your EHR contract to see what it says about maintaining system backups. Whenever you’re dealing with information technology (IT), there’s always a chance that something will go wrong. If it does, you need to have complete confidence that your backup system has you 100% covered. Anything less will cause you many sleepless nights.
Assignment of Database Control
Reviewing your EHR contract regarding who controls your database. In other words, who owns your patient records, how can it be transferred to another EHR, and how your records will always be available. Each one can greatly impact your ability to do business, both now and well down the road.
As far as who owns the data, there are only two options: you or the vendor. Obviously, if you own the data, it’s always yours. This means that, even if you decide to no longer use that specific EHR ten or twenty years down the road, you still have access to the information it contains.
On the other hand, if the vendor owns the data, you may have limited (or no access at all) to your patient and office records in the event that you switch to another vendor. This can make it difficult if not impossible to see what’s been done in the past unless you want to keep paying for an EHR that you no longer use, an expense that can quickly add up over time.
When considering data transferability, you want to check the contract to see if the EHR gives you access to the raw database or data dictionary. Should you choose to transfer the data to another EHR, this information can make the data migration process easier. You’ll also want to know whether it uses an API or Application Program Interface. API’s are small programs used for translating data from one EHR system to another.
Finally, data availability refers to how and when you can access your EHR information. Some vendors require post-contract access fees. Although acceptable, be sure such stated fees are reasonable and customary. Also, guarantee in the contract that you will have access to all previous versions of the EHR system. The last thing you want is to find yourself in a situation where you can’t retrieve necessary data at all, or have to pay an arm and a leg to do it.
Risk and Liability Responsibilities
Finally, it’s essential that your EHR contract also contains specific language regarding risk and liability responsibilities. This offers greater financial protection should an issue occur. Ideally, the contract should indemnify you from the client, the vendor, and any third party. This provides you that extra peace of mind that your profits and assets are safe and sound, at least as far as your EHR is concerned.
Also, look for claim-related limitations of liability. If you’re unsure what to look for, read the fine print and make sure it says that claims are paid on an aggregate basis and that they are only from direct damages. Any other wording or clauses may be a reason to think twice before signing that contact with that particular EHR vendor.
Remember that contracts are entered into in an effort to protect the parties involved. For that reason, you want to make sure your EHR contract protects you to the fullest extent possible by having these types of essentials in it. Hopefully, you don’t ever have to fall back on it. But if you do, you’ll be glad these things were in it.