Electronic Health Record (EHR) Contracts

The contracts to obtain Electronic Health Records (EHR) systems are just as difficult to understand as any other large software system deployment agreement.

The deployment of EHRs is mandated, and medical practices of all sizes are implementing systems. Others are finding that their original vendor is not living up to expectations Doctor on EHR System(which may mean being unable to meet the second stage functions the doctors must show to get government subsidies) and are looking to switch vendors. In either case, a complex software license agreement must be executed between the vendor and the user.

The problem is that many of the EHR license agreements are skewed toward the vendor and they are being executed by the users without a full understanding of onerous terms built into the agreements or beneficial terms left out. A few examples will suffice in this blog entry:

  1. Fee structure. Having seen the marketing information, the doctor may assume that all of the necessary fees are spelled out or that everything is obtained for one large fee. Unless the contract specifies, there are many elements that are needed that may cost extra. For example:

    • Telephone help desk support

    • Maintenance

    • All new software releases, including bug fixes and simple updates

    • Some training and implementation services

    • Creating/maintaining interfaces with other office systems

    • Transition services for moving to a new system (more on that below)

  2. Service Level Agreement. With most large software installations there is a Service Level Agreement (SLA). The SLA determines what the system being “down” means, how long the system may be down each time, how often the system can be down, etc. Penalties for excess or too frequent down time may be stipulated. Many of the EHRs lack any kind of SLA. What will the user do if the system is down 10% of the time, and the provider is not obligated to fix the problem for free or pay for the time lost?

  3. Divorce. Changing to a new vendor can be almost impossible. The agreement may not stipulate that the data can be produced in any standardized format. In some licenses, the vendor has possession of the data in the system, not the doctor. Ownership of the data is a matter being debated in the legal community and courts. There is very unlikely to be a term requiring the vendor to help in the transition to a new vendor for a fixed fee.

Buying any large software package requires care, and there are many specialized terms and conditions that must be reviewed and understood. Electronic Health Record systems are not an exception to this rule. The purchaser of the license should get help with the negotiation of the license agreement from a knowledgeable third party.

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