Advancing Health IT and Preventing Data Blocking through Model Contract Language

As we move to transform the health care system into one that delivers more coordinated care across various clinicians and providers, it is important that data is available to providers and patients when and where they need it. To achieve this goal of ensuring the flow of health data and, ultimately, better care, the country has invested in the technology and infrastructure to connect patients’ clinical experiences.

That is why CMS and ONC are working together to make sure this investment stays on the right track. We are simplifying regulations, taking steps to require open technology, and have released a Health IT Playbook to help clinicians assess their needs and navigate the electronic health record (EHR) market. In addition, today we are releasing an EHR contracting guide  – EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print – that will help clinicians and hospitals make sure that contract terms do not inhibit the utility of their EHR technologies. Quite simply, our health care system cannot realize the promise of EHRs if information cannot flow across practices – and to and from patients – easily and in a cost-efficient manner.

The growing maturity of the health information technology market presents health care providers with new, varied, complex, and often confusing choices about EHR systems. From the small practice manager exploring new cloud-based EHR products and services, to the CIO contemplating a major EHR procurement, making the right choice for a practice – and advancing interoperability – hinges on having reliable, easy-to-understand information. But we have heard from providers in the field, professional associations, and other observers that such information can be hard to find. Moreover, EHR contracts can be confusing and may result in data blocking and other practices that limit opportunities to use EHRs to deliver safer and more efficient care.

We have discussed data blocking in the past – the practice of knowingly and unreasonably interfering with the exchange or use of electronic health information. One way that blocking occurs and prevents data from moving to follow the needs of the patient doesn’t involve the technology itself, but the business practices that can prevent interoperability. This subtle form of data blocking can occur through language and terms found in contracts for EHRs and other health information technologies.

The new EHR contracting guide is a key resource that will help providers address data blocking and other challenges as they continue to adopt and leverage health IT to improve the way they deliver care. In today’s EHR marketplace, many vendors use “standard form” contracts when offering their products and services. Providers all too often agree to these contracts – which are prepared from the vendor’s perspective – without fully understanding the “fine print” or without negotiating rights and obligations that can ensure that the technology will meet their needs and expectations.

The new guide will equip providers (and their advisors) to ask the right questions when selecting an EHR and better communicate their requirements to potential vendors, all while managing the expectations of both vendors and providers and providing a framework for negotiating reasonable contract terms that reflect best practice contracting principles. The recommendations found in the guide also promote connectivity and protect against data being blocked – such as by unanticipated connection fees, restrictions on data exchange, or contract terms that prevent users from reporting and sharing information about the performance of their EHRs. The guide offers specific strategies to help providers as they plan for the purchase of an EHR system and negotiate key terms with their EHR vendors. In short, this guide helps hospitals and doctors cut through the clutter, and assists them in implementing a new EHR system in a way that supports their workflow and their patients.

Some topic area highlights from the guide include:

  • the critical planning steps that all providers should take to properly understand and communicate their requirements to potential EHR vendors;
  • contracting practices and negotiation strategies that providers can use to achieve fairer and more balanced EHR contracts;
  • legal rights and obligations that providers may wish to include in their EHR contracts – as well as those they may wish to avoid; and
  • practical pointers and example contract terms that illustrate how providers might implement more favorable terms in their EHR contract.

A carefully negotiated EHR contract that incorporates the approaches recommended in the guide will help maximize a health care provider’s opportunity to avoid problems when implementing and using their EHR, and will help create a more informed and balanced relationship between the health care provider and their EHR vendor. We also hope the guide will help health care providers and their health IT vendors negotiate contracts that allow the technology to connect the clinical experience among all providers and settings in a way that supports both practices and patients.

The guide, along with the Health IT Playbook, not only helps to support the interoperable flow of health information, but the Administration’s efforts to foster a cost efficient health care system. Ensuring patient data is available to clinicians – and patients – when and where it is needed can improve coordination among providers, prevent duplicative appointments or diagnostic tests, and decrease costs to patients and the overall health care system.

Andy Slavitt is Acting Administrator for the Centers for Medicare and Medicaid. Vindell Washington is National Coordinator for Health IT.

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11 replies »

  1. We were instructed that interoperability meant that all providers could easily have the same information about a given patient. This sounded good.

    When we all said that this facile exchange of all information was not THAT critical*, and the government kept insisting.on its importance and ignoring our pleas, we realized that it was mostly interested in having all stakeholders easily have the information about a given patient, not just the medical providers. This is a much larger set.

    This was mostly referring to government agencies, but the insurers, Congress, policy folks, and all payers were pushing for interoperability also.

    All of a sudden we realized that this government interest was not particulary patient-centered, and some of us felt deceived.

    *Clinically, it is not that important to connect on computer networks the ophthalmologist with the internist or the orthopod with the urologist. In fact, it may be good to attempt to acquire several histories and repeat some lab work. At any rate, the fax after a phone call request worked pretty well.

  2. If you continue down the path of fake interoperability, you will fail and fail hard. It is already a disaster. You need to scrap the current methods which support the interests of data miners and silo lovers and start over just about. The taxpayers are eventually going to want an explanation for this. Who will be able to explain why patients don’t have a single updated medication list in your so called interoperable system? Do you understand that the flow of real valuable information on the care of patients is worse than it was on paper? How is that even possible? You are digging a gigantic hole. it will take some bravery to stop this mess and get a functional system in place.

  3. With all due respect, you are promoting a failed approach. You continue to tie Interoperabiity to exchanging silo’d information via HIEs. This approach has failed badly in the past and will continue to fail in the future because EMR vendors won’t/don’t cooperate and providers want to be left alone to treat their patients!

    This leaves you two choices. Keep setting new rules and/or legislation to force vendors and providers to comply with your requirements which will take years and cost many more billions of dollars, OR support other approaches which leapfrog over and avoid the many problems that your linking-silos approach creates and can’t solve.

    I for one favor the second option and I suspect most every care provider on the firing line treating patients does too.

    Having spoken with many, it is clear that they want three things. First, easy to use efficient systems that save them time. Second, easy access to their patients’ records from all their providers when they need them so they can coordinate and deliver better care. Third, more rather than less income. Period. They don’t want to have to learn new ever-more complex systems that take more of their time away from their patients and cost them more and more money.

    The fact is we can meet these provider requirements today! It’s a no brainer but it requires a dramatically different approach than ONC, CMS and other well-intentioned ideologues prefer to take.

    We have developed just such a solution that is available and works today — but sadly I can’t identify it in this comment or the “system” will delete my comment for promoting a product rather than just talking the subject to death!

  4. Any EMR becomes most efficient and more effective for healthcare to the extent that it supports the CARING RELATIONSHIP between the patient-person and the physician-person. To that end, I offer the following definition of a caring relationship. It is
    “A variably asymmetric interaction between two persons, over time, who share a beneficent intent to enhance each other’s autonomy by communicating with warmth, non-critical acceptance, honesty and empathy.”
    Carl Rogers defined the underlying character of this relationship more than 50 years ago. Should not the form and structure of an EMR’s data sets reflect the individuality of the caring relationship underlying health care?

    Herein lies my rejoinder in support of Niran.

  5. Public CSPs, cloud service providers, often have good resources devoted to physical and electronic data security and are therefore attractive to use. They often have places all over the world, however, and some are “stacked” where multiple CSPs provide different layers of support for a given service. But national health care policies and privacy rules are not applicable across international borders, Accordingly, hosting this data may violate rules of the state or the US where the provider is located.

  6. Be wary of EHR vendors… I hear you. It appears you are asking the end user (ie MD’s) to work through the mess of health IT. The big problem is that I went to school for 11 years to study and learn the craft of medicine. Email came about after I graduated from college. I do not have an IT degree nor do I plan to get one. I also do not care about your plans to “use EHRs to deliver safer and more efficient care” because I still believe you are wrong. No EHR system out there has proven to enhance quality.

    You are putting the cart before the horse. Find an EHR that actually improves quality of care (that has been rigorously evaluated and well studied) and makes my life better and you have the horse. Then you can attach a heavy cart for me to drag. Nothing in this article above is required for me to practice medicine. You are not going to get traction. You are going to get a lot of physicians dropping out of Medicare.

  7. via e-mail

    I take the liberty of commenting briefly on a part of this because:
    I wrote the original JAMA article on the hold harmless and non-disclosure clauses,
    I was on the AMIA task force that called for the elimination of both clauses,
    I was involved in one of the two IOM reports that called for the elimination of both clauses,
    I am the coauthor of the AHRQ/ONC guide to reducing problems when implementing an EHR

    Overall, I think it’s very helpful and I applaud the ONC for offering it to healthcare providers. That said, I note two problems for your consideration:

    1. Although there is a very good discussion of the hold harmless and non-disclosure clauses — including a statement that all responsible organizations have called for their elimination (e.g, National Patient Safety, IOM, AMIA) they still refuse to demand elimination of those clauses. By analogy: this is like the NTSB saying everyone agrees it’s critical that we can openly report failing brakes in a car, but we still refuse to demand that such reports be allowed. So, for safety sake, why do they pussy foot around this even though they say that such open reporting is essential to improving patient safety. They could have said: just say “no” to those clauses in contracts.

    2. They say that certification of the EHR ensures that it works according to CMS specs. That’s both true and utter nonsense. The certification process is operated by private testers who collect money from the vendors. Worse, it’s an open book exam, with pre-set and published items on which they are “tested,” with no time limits, and with stunningly flexible definitions of success. In other words, if function A failed in testing part X of the EHR, but worked in part Y of the EHR, then it would pass. Also, to my knowledge, not all clinicians have 8 hours to change one dosing schedule…. which actually took place in one testing situation. But it was eventually successful and it passed the test. By analogy again… oh enough.

    In any event, I applaud the ONC for offering this. They understandably advise everyone to get a good lawyer familiar with these contracts. That’s a darn good idea. I have a copy of a vendor EHR contract with a hospital — obtained through public channels — that runs to about 3000 pages.

  8. Is HHS looking at existing contracts? If so, can you tell us anything about the options you’re looking at?

  9. Andy, Vindell, you cannot have it both ways.
    If you are doing a nanny state EHR certification program, then you MUST force EHR vendors to being open with data, not charging, and making things flow. You cannot expect MDs that are the end users to be modulating this free flow of information. The way I read this is…EHR vendors can screw you. So now, you busy, overburdened providers, you must learn contract law too. We are going to teach you during your downtime how to correct these US government certified EHR contracts so they do not block information or cost alot. Puhlease. Can ONC and CMS NOT add one more non medical activity that I need to learn for EHRs? Can we try that for a few years?
    Second, the other option is just get out of the way. RIght now EHR vendors HIDE behind the certification, saying they are certified so they can charge what they want and put as many hurdles in front of the lowly end user and still state we are “certified” and capable of interop. The other option is stop certification all the way. Let us fend for ourselves. I would ACTUALLY prefer a real market instead of the charade you have built. A real market would force IT to do what end users want at a competitive price.
    So Stop Teaching Contract Law to Physicians. You are wasting your time AND our time.

  10. One area where I would like to see ONC muscle is toward enforcing data exchange standards so interoperability can advance. It’s one thing to offer up an annual standards advisory – the latest with a comment period through Oct. 24 – it’s another to crystalize a set and work more toward adoption and maturity, especially in light of the mixed-to-poor major EHR vendor integration survey results recently announced here on THCB. As to the content in these new documents from CMS and ONC, anything offering buyer beware content on EHRs is welcome, but it’s so heavy on the EHR front it misses the mark on the largest growing segment in HIT, that of PHM platforms, necessary to pull data from disparate and non-integrated EHRs being used within a given health system along with other data quality and reporting steps; this is where CMS/ONC can or should have spent time on how to meet evolving VBC models.

  11. It may be better to safeguard data than to promote its easy availability to all the providers for a given patient.

    We are in the process of trying to decide this. Naturally the government wants to be able to oversee our data output from the health care industry. But the patients and doctors and hospitals sense danger here….danger from litigation, from loss of deeply personal and private information, and loss of trade secrets and commercial advantages and we see potential interference in the practice of medicine.

    Why should the government’s wishes override these other stakeholders?…when the governnment works FOR us? It doesn’t make sense to rush this interoperability issue when the EHR itself is so new a concept. Better to back off and let the trenches evolve best- practices. The government should wait patiently on the sidelines on this one.

    You are acting like a government with autism: you lack a “theory of mind” (you are not able to empathize with the minds of the health care providers.)