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Now that the digitization of healthcare information has evolved from a preference to a mandate, healthcare providers face the need to make ""Meaningful Use of EHRs or lose existing Medicaid and Medicare reimbursement levels. At the same time, healthcare entities must choose the right EHR platform — a seemingly overwhelming decision because of the number of choices, the ever-changing identities of vendors and the limited interoperability with third-party systems.

In light of the inevitable downsides of digital — server outages, dropouts, potential data loss, manual data entry, and more— having the proper knowhow to manage and negotiate a relationship with vendors is more important than ever. Many providers are finally dipping their toes into the digital age or experiencing a system change, presenting a prime opportunity to reevaluate their contract. But first, there are a few points to consider.

Who's in Charge?

At the start, you need to decide who will be representing you in the contract negotiation. Many delegate the process to practice administrators or managers. However, the right team should include tech-savvy individuals experienced with digital medical records who have a vested interest in the well-being and security of your practice. An attorney does not always have to be involved in the early stages of EHR contract negotiations, but the sooner you consult a legal advisor, the better. Choose a decision maker with relevant skillsets and knowledge who you can also trust.

Old or New?

After you decide who will take the lead, the next step is to identify whether to modify your existing contract or switch to a new provider altogether. While it is tempting to start afresh, remember your EHR vendor controls invaluable patient information. If your first contract was not negotiated well, it may contain vague, vendor-friendly rules dictating how your patient data is returned to you.

Retrieving data from a vendor can be similar to negotiating a hostage situation —especially in financial disputes where a vendor may be expecting payment withheld due to unmet expectations. In these scenarios, it is difficult — if not impossible — to ensure data is returned in a useable format.

Therefore, even if you stay with your current vendor, consider reviewing your contract and amending it with verbiage which will work in your favor when switching vendors in the future. Be sure to clarify how a data conversion should be handled. If a vendor will not incur additional costs, they should agree to your conditions.

Below are two examples of contract language detailing data conversation requirements. The first example is "vendor-friendly," while the second is notably more "client-friendly."

#1: Upon termination, Vendor shall deliver to Client, after full payment of all fees owed Vendor, a download of the Client Data in a commercially reasonable electronic format determined by Vendor. Additional programming costs associated with such download shall be set at Vendor's then-current list price.

#2: Upon termination, Vendor shall deliver to Client a final CD in ASCII Format (or mutually agreed upon alternative format) with fixed length data elements or comma delimited data elements (or mutually agreed upon common file delimiter.)  Notwithstanding the foregoing, Client may request that any Client-related information be provided by Vendor to Client in other commercially reasonable formats selected by Client. If Vendor can provide the requested information in such other formats without having to incur additional material costs, then Vendor shall comply with such requests. If Vendor cannot provide the requested information in such other formats without Vendor having to incur additional material costs, Vendor shall notify Client of such costs (using its lowest available rates) and only be required to provide the requested information in such other formats upon Client's payment of same.

Even with the best contract language in place, it's ultimately unclear what will be needed in five years' time. This is why it's always a good idea to build flexibility into a contract's language. Additionally, you can negotiate on the front-end to receive periodic downloads of your data in a user-friendly format.

Effectively Managing Costs

When negotiating contracts, don't accept fees without fully understanding what services those fees include. Take the chance to understand and tailor your vendor's fees and services to your specific needs. Common types of fees include:

• Licensing fees

• Third-party software fees

• Consulting fees

• Maintenance fees

• Implementation fees

• Interface fees

For instance, a vendor's consulting fee may only cover a few hours of communication. If you anticipate needing more consultation time, consider negotiating to increase the hours or services covered.

Additionally, your practice will likely experience workflow interruptions when migrating to a new vendor so consider negotiating a fee for productivity lost. This line of thinking also applies to network errors and downtime. If a practice cannot function due to a vendor's error, the vendor should be responsible for reimbursement.

It is also possible to limit vendor fee increases by setting percentage/CPI caps or limiting frequency of increases. Increases are often related to system upgrades, add-ons, new equipment and staffing needs. Also, review whether your contract stipulates your provider will automatically update software in compliance with changes in law at no cost to you. Know where your risks are and limit them with the help of an attorney.

Use Your Knowledge

Negotiating a beneficial EHR contract can be a tricky process, and healthcare attorneys understand better than anyone how frequently the legal environment can change. However, if you take your contract process step-by-step with careful attention to detail, you should be able to create a relationship with your EHR provider that fairly and fully services you and — most importantly— your patients. 

Mark Cunningham, JD, is a healthcare attorney and shareholder at Chambliss Law Firm in Chattanooga, Tennessee. He has nearly 20 years of experience serving as counsel for leading healthcare participants on a regional and national level.