Electronic Health Record Vendor Contract

9A: Implementing Health Information Systems; SDLC As Director of Health Information for a large health system, you have been tasked as a key leader in the selection and implementation of a new electro

Contracting Guidelines

In general, if a contract is presented to a practice from an electronic health record vendor, it will be written from the perspective of the vendor.  A practice can request language changes to make the intent of the contract more “equal,” although many companies may not be flexible about language changes. Do not be afraid to seek legal guidance.

GENERAL

1. The contract should have bi-lateral termination clauses without penalty given within a certain notice period.
2. The contract should stipulate that it may not be transferred by one party without written approval of the other party.
3. The contract should have a definition section for anything that is not readily understandable.
4. The contract should spell out what happens in the event of default by either party and should be as evenly weighted as can be possibly negotiated.

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SOFTWARE

• The contract should spell out who owns the data (clinic should have complete data ownership) and that the data will be returned in a nonproprietary form (standard, interoperable) should the agreement between the two parties be terminated for any reason.
• The contract should also include language regarding the vendor turning over source code, data models, design documents, etc. should it, for whatever reason, go out of business or cease to operate.
• The contract should spell out whether the cost of the system includes upgrades, patches, etc. and, if so, how many, who is responsible for applying them, at what cost, and what happens if an upgrade negatively impacts the system.
• The contract should spell out how non-vendor upgrades, patches, etc. (such as for the operating system, reporting software, or database management system) are handled, who is responsible, etc., similar to above.
• If the system includes third party software and/or content, the contract should spell out the associated costs, who is responsible for those costs, and how updates are handled.
• The contract should include language regarding the vendor ensuring the confidentiality of patient and practice information. The vendor should be willing to execute a separate HIPAA Business Partner Agreement.
• The contract should state that the vendor agrees to comply with HIPAA requirements and to make the necessary modifications to ensure compliance at no additional cost to the practice.
• The contract should state that the vendor agrees to comply with the Consolidated Health Informatics (CHI) standards for interoperability and to make the necessary modifications to ensure compliance at no additional cost to the practice.
• The contract should be structured to include a progressive payment schedule based on the achievement of certain implementation milestones.

Example:     

• Signing of contract
• 10% Installation of software and hardware
• 20% Completion of training
• 25% Completion of system testing
• 30% Final system acceptance
• The contract should recognize the need for additional template development and screen customizations and specify vendor/client responsibilities. If the vendor is to provide assistance with template development, include this step as a payment schedule milestone (example above).
• The contract should specify the conditions under which a breach of contract has occurred, such as the system not performing as specified, consistent poor performance, etc. and at what point money is refunded, or payments may cease.

SUPPORT

The contract should outline what support hours will be available (including time zone) and what level of support is included.

• Costs for additional support should be itemized on the contract.
• The contract should clearly outline the terms of the support agreement.

INTERFACES

• For each interface to another system, e.g., laboratory, billing, scheduling, etc., the contract should indicate whether the cost of the interface includes interface programming time and, if so, how many hours are included. It should detail what happens if and when those hours and the associated costs are exceeded.
• The contract should also identify what is included with the interface, for example interface specifications.
• The contract should state what happens if subsequent programming is needed either because of initial errors or if additional modifications are needed.
• The contract should stipulate who owns the interface and who will troubleshoot it when it goes down or errors occur.
• Each interface should have terms outlined regarding which party is responsible for upgrading it, and which party will assure that it functions with new upgrades of main products.

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TRAINING

• The contract should identify how many training hours are included, who is covered, and what is included with the training, e.g., training material, customized cheat sheets, etc.
• The contract should explain what happens if additional training is needed and what the billing rate is for additional time.
• The contract should spell out what are acceptable and non-acceptable costs and establish a per diem rate for trainers (if there are on-site sessions).
• The contract should stipulate what (if any) follow-up training is provided and at what cost.

IMPLEMENTATION

• The contract should spell out what is and is not included in the implementation costs: what services will be received, how many hours, who the resources will be, what sort of materials will be provided (e.g., project plan, implementation guides, specifications), etc.
• The contract should spell out what are acceptable and non-acceptable costs and establish a per diem rate for implementation staff.

CAVEATS

• Look at the warranty, disclaimer and limitation of liability sections very carefully. Usually these are written all in caps or bold type, and they severely limit vendor’s liability. Vendors are not likely to change either section substantively (if at all) even if a practice requests it, so read and understand this part and what it means for the practice.
• Check carefully to see what the vendor warrants to the practice and what the practice’s responsibilities are with regard to it.
• Look to see if the contract specifies minimum hardware requirements and be prepared to meet them. If a practice uses what a vendor considers to be “substandard” equipment (to try to save some money), it may invalidate the agreement.
• Read the indemnification section carefully as well. This is another section that vendors are not likely to change, so a practice should understand what it is stipulating.
• Check the duration and termination clauses – again a practice should be able to “free” itself from this with relatively little organizational pain. (No handcuffs or shackles.)
• Understand the different ways in which the vendor can terminate the agreement and make a contingency plan for this. 

Factors to consider when choosing an EHR system

Unfortunately, there is not a universal, one size fits all recommendation practices should follow when choosing an EHR system. Rather, practices must first consider how individual circumstances will define the EHR product they will choose. A practice should determine whether an EHR is appropriate for the size of the organization. An organization should not only consider whether an EHR fits within its budget, but also whether the system’s workflows are designed to accommodate a practice’s volume of patients. As such, a facility should review all available resources to assist during the vendor selection process, in order to be certain an EHR is an appropriate fit.

In a similar vein, during the selection process practices should also consider whether they want an on-premises or cloud-based EHR. On-premises EHRs require physical space to accommodate the necessary hardware, dedicated IT staff, and require an upfront investment in the required hardware, whereas a cloud-based system does not require a practice to dedicate space and capital toward on-site hardware.

Lastly, it is important for an organization to consider which system has the best tools for patients. The level of importance this has will depend on services offered and the type of patient population being served. Some types of practices require a greater level of patient engagement through a patient portal, whereas others may find other patient-centered features such as electronic registration or appointment reminder features are a better investment.

EHR security measures

Security considerations factor heavily in the EHR selection process for two reasons. The first, and most obvious, rests on the fact that organizations have a legal obligation to properly protect patient health information. Secondly, a data breach is costly. According to the Ponemon Institute, a data breach, on average can cost an organization over $5 million in lost system downtime, and loss of information assets. Accordingly, a significant part of the obligation to protect patient health information involves selecting an EHR that is designed in a way that offers adequate security.  

Questions to ask when selecting an EHR

Once the EHR selection criteria has been established, the selection team should generate a list of questions that can be directed to vendors to assist in the EHR selection and decision-making process. Although the list of questions that can be asked is not limited, important questions that should be asked include:

1. What is the total cost of ownership for this product?
2. What security features does the product offer?
3. What type of support is offered with the product?
4. What type of assistance does the vendor provide during implementation?
5. How are updates and other add-ons handled by the vendor?

Planning the selection process is one of the most important administrative tasks a practice can undertake given the costs of not making the right decision. Therefore it is important to have a set of clear objectives in mind, but also understand how to ask the right questions in order to make the information gathering process as rigorous as possible.

How to select an EHR system: a quick step-by-step list 

Selecting an EHR system can be a daunting process even for those who have experience in the area. However, the process can be made less daunting when it is viewed as a process that can be broken down into smaller manageable steps.  As a process, it is important to understand the goal that is to be achieved. Here the goal is the selection of an EHR product that is aligned with an organization’s clinical and administrative goals while being a good fit from a financial perspective. In effect, the right selection is one that further practice’s goals and provides a suitable return on investment over the short term and long term.

With the goal of the selection process in mind, what are the steps needed to select an EHR vendor? The steps in the selection process can be divided into the early organizational phase, the information gathering and evaluation phase, and the decision phase. 

Early organizational phase 

1. Assembling the selection team: a selection team consisting of key stakeholders must be assembled.
   2. Assigning roles and responsibilities on the selection team: on the selection team, individuals should have designated roles and responsibilities related to the steps in the selection process.  
   3. Goal and milestone setting: in this step, the overall goals for the selection process are established along with the objective milestones to gauge progress. 

Information gathering and evaluation phase 

4. Generate a requirements list: a requirements list is generated by surveying members of the organization to determine what features and functionalities will help the practice achieve its goals. 
   5. Prioritization of requirements: the requirements list is then prioritized through further surveying of key stakeholders who determine a ranking of requirements.
   6. Research vendors: the selection team should conduct preliminary research to determine which vendors meet their general criteria and should receive RFIs.  
   7. RFPs: after collecting information from RFIs vendors who best meet the requirements criteria are provided with RFP to submit proposals to deploy their EHR product.    
   8. Evaluation of RFPs: RFPs are evaluated based on how well the product aligns with the organization’s prioritized requirements list. The best matches are shortlisted and called to provide a demonstration of their product.  
   9. Demonstrations: the selection team hosts vendors for product demonstrations.  
   10. Evaluating demonstrations: the information from vendor demonstrations is compiled and evaluated on how well it aligns with the prioritized requirements list. Once this information is compiled it is submitted to the selection team for a decision as a group. 

The decision phase

11. Deciding on who should get the contract: after all the information is in and deliberated either designated members of the selection team or the entire group decides on which product will be chosen. 
    12. Contract negotiations: the vendor is informed that they have been selected. The vendor and the practice’s representatives negotiate the terms of the purchase of the EHR product. If an agreement cannot be reached other suitable vendors are contacted and the process repeats.  

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