Thursday, June 13, 2013

EHR Systems: Contracting for Change

Earlier, I discussed the recent decertification of two EHR Technology systems previously certified under ONC standards and, therefore, ineligible for use to meet “meaningful use” requirements.  Recently, these products failed a retest conducted by an ONC-authorized certification body.  The decertification was the first following the push to adopt EHR Technology to qualify for meaningful use incentives and to avoid an eventual reduction in Medicare program reimbursement.

An ONC decertification announcement is certainly a concern for healthcare providers that have purchased and implemented EHR Technology at great expense.  But there are ways providers can protect their organizations and mitigate the legal risks associated with an ONC decertification.

On the front end of a transaction to purchase EHR Technology, it is important for provider organizations to exercise due diligence when evaluating available systems and system vendors.  Confirming that the EHR Technology is certified under ONC standards is an important first step.  But the provider organization should also evaluate the software vendor, the vendor’s history and responsiveness, and feedback from other users of the EHR Technology.

The next step in evaluating EHR Technology should be to learn about the software vendor’s system update and upgrades policy and process.  If a system change is required to meet evolving ONC standards, how quickly will the vendor implement that change and at what cost to the provider?

Perhaps the most important item in the due diligence process is to ensure the EHR Technology purchase and maintenance agreement between the provider organization and the EHR Technology vendor contains protections for the provider in the event ONC standards change, or the EHR Technology no longer qualifies for ONC certification.   At a minimum, the purchase and maintenance agreement should require the EHR Technology vendor to provide prompt system updates to ensure continuous compliance with ONC standards, and indemnify the provider for any loss resulting from an ONC decertification.

Finally, the purchase and maintenance agreement should contain an express warranty that the EHR Technology does meet and will continue to meet ONC standards or the vendor will at the very least refund the price paid by the provider for the EHR Technology.

Clay B. Wortham
cwortham@mmlk.com
McBrayer, McGinnis, Leslie & Kirkland, PLLC
Lexington, Kentucky

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