ONC contract guidance attempts to level the EHR playing field

Regular readers of FierceEMR know that I tend to be cynical about new developments. I don't take them at face value and delve deeper to see if there's anything in addition going on behind the scenes.

And so it is with the Office of the National Coordinator for Health IT's new "legal" guidance on EHR contract terms.

I love this new guidebook, called "EHR Contracts: Key Contract Terms for Users to Understand." It identifies seven provisions commonly found in vendor contracts, explains what they mean, what electronic health record purchasers need to know, and other related issues.

It's a very good tool, written in plain English.

But the guidebook--not unlike ONC's surveillance guidance for ONC-Authorized Certificating Bodies, also issued in July--has deeper significance for the industry.

Let's review the evidence.

For starters, ONC issued the guidebook as one of a pair of tools to its online portfolio of patient safety resources. By doing so, the guidebook is part of the U.S. Department of Health & Human Services' IT safety action plan, a laudable and legitimate role for ONC to play.

But the guide was developed under a contract called "Unintended Consequences of Health IT and Health Information Exchange." Granted, some of the unintended consequences of health IT and EHR are safety-related, but many of them are not--such as lack of vendor support, unanticipated expenses of EHR adoption and workflow snafus.

Also, while some of the contract terms addressed in ONC's guidebook do impact patient safety, the guidebook goes much further, addressing business terms and economic factors such as intellectual property disputes, indemnification and wind down provisions.    

Plus, while ONC specifically says that the guidebook is not legal advice, that's just language to cover itself. The guide provides legal advice--and for free, to boot--telling readers to look out for certain language in a vendor contract, recommending specific questions to ask vendors and suggesting compromise negotiation positions.

So what's really going on here?

ONC may be trying to make amends. Its newly issued safety plan tends to favor vendors at the expense of providers.

So it's trying to level the playing field. ONC wants providers to be more satisfied with their EHRs, and one way to do that is to improve the relationship between the vendors and the providers, especially in a transition year before Stage 2 of Meaningful Use kicks in and providers are expected to switch EHR systems in droves. Many providers could dive in without fully understanding the legal impact of the deal they're getting into.

And that's when providers end up frozen out of their own EHR systems when the deal goes sour. 

ONC is exposing the vendors' dirty little secrets under the guise of patient safety. It even warns providers to watch out for vendors that won't negotiate.

The guide does not take the place of legal representation. ONC specifically recommends that EHR purchasers obtain assistance from an "experienced attorney."

But ONC is telling EHR purchasers not only to look out, but what to look out for.

Clever, clever. I only hope that the message isn't too subtle. - Marla (@MarlaHirsch)