EMR Law: The EMR Contract

4 Important Considerations

The decisions don't end after deciding on an EMR system for your hospital or medical practice. An EMR contract is an important and legally binding document, and it's absolutely essential to consider every line of fine print before accepting the terms. EMR attorney and O'Toole Law Group founder William O'Toole strongly believes that contract terms should be one of the top criteria in the EMR selection process.

Following are the top tier items to look for in your vendor's proposed EHR contract, assuming that your implementation of an EMR is dependent on ARRA/HITECH reimbursement. Consider reviewing your contract with an EMR attorney before signing.

Certification Warranties: First, the vendor must warrant that the EMR software package has been certified under the ARRA/HITECH program. Next, the vendor must warrant that it will maintain certification of the EMR software package throughout the period in which you are eligible for reimbursement.

Remedy for Breach of Certification Warranties: This may be tougher to obtain, but if you are fortunate to have selected a vendor that provides the warranties above, then the next step is to see what remedies are offered in the event the vendor does not follow through. Ideally, the remedy would be a full refund of all amounts paid to the vendor for the non-certified EMR. Next best would be for the vendor to pay any amount of missed ARRA/HITECH reimbursement caused by the vendor's non-certification.

Delivery and implementation schedule warranty: The vendor should warrant that the delivery date and implementation schedule for the EHR software package will enable you to meet the proscribed ARRA/HITECH timetables that are necessary for you to receive reimbursement. In fairness, this one must be tempered somewhat, because the vendor is not responsible for all tasks in an implementation. A qualifier that the delivery and implementation schedule will enable you to meet the timetables provided you have done your tasks in the implementation plan on time is reasonable.

Sufficient training and support is provided, and is provided on a timeline appropriate for meeting the timetables required under ARRA/HITECH: This is especially important if you are selecting an SAAS model, because under this option the software can be delivered, or accessed, in an amazingly short period of time. But while this type of EHR software package may be running and ready-to-go, if you and your staff do not know how to use it, then it is by no means ready for use in a live environment.

These items are only a sampling of important contract issues to consider with an EMR attorney. There are many others that are critical for your protection - such as payment terms, limitation of liability, copyright/patent protection, etc. The above list is intended to be a highlight of the top issues pertaining to your ability to obtain reimbursement from the government for your investment in EMR technology. Most vendors recognize this, but some unfortunately some do not provide the corresponding protections for their customers.

Last Updated: Oct. 25, 2012