ONC Adds Guide on Contract Terms

The Office of National Coordinator has released a guide to common contract terms used in EHR agreements. It’s not just boilerplate; rather it has both candid and pointed advice to prospective buyers.

This is a good step forward. Anyone thinking of signing a contract with an EHR vendor would be well advised to read the guide. For example, its Warranty section says:

Given the importance of this issue, the EHR technology developer’s express commitment to remain certified in a timely manner should be an important consideration in selecting an EHR technology developer. If you proceed with an EHR technology developer that is unwilling to make this commitment, you may want to negotiate the ability to terminate the agreement without further payment if future certification is not met so you are able to transition to another EHR system without having to pay two EHR technology developers. The termination and wind down language discussed later will also be very important. (p. 11)

Need for Change. There has been a need for clarity in contract terms for a long time. That’s why we have the Contract Features/Implementation section in the Selector. However, this is a piecemeal approach to the issue. Currently, each vendor drafts an agreement and the buyer has to go over it asking for clarifications and changes. As a result, every contract is different. It’s not an easy process. I’ve often spent as much time negotiating an agreement as I did selecting the system. It doesn’t have to be that way.

If you hire an architect, it’s a different process. The American Institute of Architects has created a series of standard contract provisions that apply to its members. While not perfect, it certainly is a far more structured and developed approach than the EHR industry’s one at a time approach. This is not just a consumer side issue. EHR vendors spend a lot of time and expense on these agreements that could be better spent on service and support. The Electronics Health Record Association should pay a visit to the AIA.

EULAS. The guide applies to contracts for systems regardless of the way in which the EHR is delivered, that is on the web or not. As a practical matter on a web based system, you get its EULA (End User License Agreement) take it or leave it. If you reject it, you have no real option, but to look somewhere else. Here again, vendors need would do well to reconsider how they operate.

When we took the Selector back last year, one of the things we did was to review our EULA. We rewrote it to make it shorter, less obtuse and to spell out how we treat your information, etc. If you’d like a copy, email me at: carl@ehrselector.com