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8/23/2010
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Health IT Contracts Offer Little Protection For Buyers

Key questions healthcare providers should ask before signing an electronic health record vendor agreement detailed by lawyer.




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As healthcare providers purchase electronic health record software and other health IT to meet meaningful use requirements, they must insist that the legal contracts they sign with vendors will protect their interests.

Last week at the American Health Information Management Association's (AHIMA) 2010 Legal Electronic Health Record (EHR) Conference in Chicago, Steven Fox, a lawyer focusing on health IT issues with law firm Post & Schell, urged healthcare providers to ask themselves key questions when acquiring EHR technology to achieve meaningful use, including: What technology and services should be purchased? What is to be paid for and when? How to assure that requirements will be met? And what happens if the product fails?

"Many health IT vendors offer online contacts that prompt the physician to click the 'agree' button. Unfortunately some of these agreements have no warranties and in fact disclaim many standard warranties, so the vendors are selling their products 'as is,' which means if something goes wrong they are not responsible," Fox told InformationWeek after his presentation. "Some contracts even go further and say if a third party, for example the patient, would sue as a result of a problem with the EHR, the physician has to indemnify and defend the vendor even if it was the vendor that caused the problem."

Fox, who is chair of Post & Schell's IT group and co-chair of the data protection group with a concentration on health IT, said healthcare providers should remember that meaningful use is an evolving requirement, and that, while we know the requirements for Stage 1, we don't have final rules for Stages 2 and 3.

Under the Centers for Medicare and Medicaid Services (CMS) EHR incentive programs, reimbursements will be issued to eligible hospitals and professionals as they adopt, implement, upgrade, and demonstrate meaningful use of certified EHR technology. The incentive programs, which will begin in 2011, are designed to support providers in this period of health IT transition and encourage the use of EHRs in meaningful ways to help improve the quality, safety, and efficiency of patient health care.

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