ONC issues guidance on EHR vendor contract terms

The Office of the National Coordinator for Health IT has released its first guide to help electronic health record buyers and users understand vendor contracts.

The 25-page guide--entitled "EHR Contracts: Key Contract Terms for Users to Understand" and released July 29--provides detailed information on seven common EHR contract terms found in vendor agreements, including the meaning of the terms, what providers need to know and related issues, such as specific language one may find in a contract.

"Understanding these terms may help you select an appropriate EHR system and protect your practice or organization from business and patient safety risks that may arise when you rely upon EHRs for critical aspects of your operations," the guide states.

Contract terms addressed in the guide include:

  • Indemnification and hold harmless clauses
  • Confidentiality and nondisclosure agreements
  • Warranties and disclaimers
  • Limits on liability
  • Dispute resolution
  • Termination and wind down provisions
  • Intellectual property disputes

The guide also explains the difference between using an EHR provided via a license to operate the software on one's own equipment and one provided "as a service" with or without a software license. It takes pains to note that it is not providing legal advice, that each provider has its own "unique circumstances," and that purchasers should obtain the assistance of an "experienced attorney."

The contract guide is the latest in ONC's efforts to support the use of EHRs and other health IT. Other resources include case studies, workforce programs, and the regional extension center program.

According to John Christiansen, a health attorney with Seattle-based Christiansen IT Law, providers need look beyond EHR vendor contracts themselves, and take a risk management approach when evaluating an EHR purchase, since there are so many vendor-related risks that can adversely affect them. Some of those risks--he said, speaking on a webinar conducted by the American Bar Association's Health Law Section in early July--include operational risk, risk to reputation and risks to patients.

To learn more:
- read the guide (.pdf)

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