TOP STRATEGIES FOR NEGOTIATING EHR AGREEMENTS
This presentation is the property of its rightful owner.
Sponsored Links
1 / 19

TOP STRATEGIES FOR NEGOTIATING EHR AGREEMENTS MISSISSIPPI HOSPITAL ASSOCIATION’S PowerPoint PPT Presentation


  • 66 Views
  • Uploaded on
  • Presentation posted in: General

TOP STRATEGIES FOR NEGOTIATING EHR AGREEMENTS MISSISSIPPI HOSPITAL ASSOCIATION’S 2 ND ANNUAL HEALTH LAW CONFERENCE April 16, 2010 Armin J. Moeller Dinetia M. Newman Balch & Bingham LLP [email protected] [email protected] What is the Hospital’s Objective?

Download Presentation

TOP STRATEGIES FOR NEGOTIATING EHR AGREEMENTS MISSISSIPPI HOSPITAL ASSOCIATION’S

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Top strategies for negotiating ehr agreements mississippi hospital association s

TOP STRATEGIES FOR NEGOTIATING EHR AGREEMENTS

MISSISSIPPI HOSPITAL ASSOCIATION’S

2ND ANNUAL HEALTH LAW CONFERENCE

April 16, 2010

Armin J. Moeller

Dinetia M. Newman

Balch & Bingham LLP

[email protected]

[email protected]


Introduction to critical issues

What is the Hospital’s Objective?

Interoperable EHR system by which hospital/professionals can meaningfully use certified healthcare technology

Species of IT contract

Goal: something which does not currently exist

Qualify for EHR incentive payments

What is EHR Vendor Promising?

Functional EHR system?

“Best efforts” or “Commercially reasonable efforts”?

Disconnect between EHR vendor advertising and contract terms

Schedule/Time of the Essence?

What excuses delay?

INTRODUCTION TO CRITICAL ISSUES

Best

Effort,

Inc.

Hope for the Best

EHR Vendor


Introduction to critical issues continued

Defects/Delays – Notice of Cure/Period of Cure?

What is end point?

Material breach of contract?

Dispute Resolution

Mediation? Arbitration? Compulsory? Courts?

Venue? Limitations?

What is a Material Breach?

Time of the essence?

Nonconforming deliverables jeopardize success of project?

INTRODUCTION TO CRITICAL ISSUESContinued


Introduction to critical issues continued1

Warranty Provision

What is being warranted? Functional EHR system?

Duration?

Software free of material defects?

Useable for its intended purpose?

Performance being warranted?

Not materially deviate from contract specifications?

Limitation of Liability

Typically, strict LOL provisions

INTRODUCTION TO CRITICAL ISSUESContinued


Introduction to critical issues continued2

Where are Broken Promises, Misrepresentations And Failure?

Documentation

Notice and demands to vendor

Follow through

Overcoming hospital breach/lack of assistance and substantial performance defenses

Avoiding Looking Stupid About What Was the Bargain

INTRODUCTION TO CRITICAL ISSUESContinued


Key contractual provisions

Definitions

Specifications

License Terms

Warranties

Change in Law

Support and Maintenance

Confidentiality, Privacy & Security

Disclaimers

Limitation of Liability and Indemnification

Acceptance Testing/Milestone Payments

Pricing/Financing

Dispute Resolution

Final Thoughts

KEY CONTRACTUAL PROVISIONS


Key contractual provisions definitions

KEY CONTRACTUAL PROVISIONS – DEFINITIONS

  • Location

  • Important Definitions

    • “Contract” or “Agreement – related documents

    • Purchased products: Equipment, Software, Third Party Software

    • Effective Date

    • Live Date

    • Documents

    • Loss

    • Travel Expenses

    • Maintenance and/or Implementation Services

    • Clinical Content & Medical Necessity Content


Key contractual provisions specifications

KEY CONTRACTUAL PROVISIONS - SPECIFICATIONS

  • Have appropriate hospital IT person confirm sufficiency of specifications

  • Assure all functionalities are covered in contract

  • If possible, link specifications to HITECH meaningful use requirements

  • Warranties will be based on specifications


Key contractual provisions license terms

KEY CONTRACTUAL PROVISIONS – LICENSE TERMS

  • Named User or Concurrent User Licenses

  • Intellectual Property Issues

    • Vendor indemnification if infringement alleged

  • Termination of Licenses

    • Provisions allowing hospital to terminate licenses

    • Transition assistance to new EHR vendor

      • Move data to new server

      • Vendor provide copy in user-friendly format

  • Ownership of data upon license termination


Key contractual provisions warranties

KEY CONTRACTUAL PROVISIONS – WARRANTIES

  • Warranties based on specifications

  • Interoperability

    • With existing software and interfaces owned by hospital, health system

    • With software of other health care providers/suppliers

  • Certified currently and in future

  • Compliance with “meaningful use” criteria

    • Continuing through various Stages

  • Compliance with all applicable HITECH, HIPAA and other laws and regulations

  • No viruses; security protections


Key contractual provisions warranties cont

KEY CONTRACTUAL PROVISIONS – WARRANTIES (cont.)

  • Remedies on breach of warranty

    • Repair

    • Replace

    • Re-perform

    • Refund of project costs, incentive payments

    • Penalties

    • Timing, broadening of remedies

  • Disclaimers

    • Use by trained personnel

    • “Garbage in, garbage out”: no control over content

    • Custom add-ons

    • Vendor does not practice medicine

    • No control over internet: interruptions, errors, lack of security


Key contractual provisions change in law

KEY CONTRACTUAL PROVISIONS – CHANGE IN LAW

  • Law likely to change prior to EHR “go live” date and thereafter

  • Important to negotiate pre-purchase

    • Without negotiation, leverage might shift to vendor

  • Terms

    • Who bears risk of change

    • What will costs be if change occurs

    • Whose responsibility is cost

      • Upgrades, new functionalities, installation

      • Implementation fees,


Key contractual provisions support maintenance

KEY CONTRACTUAL PROVISIONS – SUPPORT & MAINTENANCE

  • Timing of support: 24/7, answer questions

  • On site/off site – remote diagnostics

  • Updates, new product versions

  • Consistency of personnel

  • Training – type of training

  • Limits on price increases

    • Termination ability of hospital to terminate maintenance/support

    • Limits on vendor termination rights

  • Remedies


Key contractual provisions confidentiality privacy security

KEY CONTRACTUAL PROVISIONS –CONFIDENTIALITY, PRIVACY & SECURITY

  • Business Associate Agreement

    • Remedies on breach

    • Timing of breach notice

    • Termination issues

  • Data destruction, return by BA

  • Confidentiality of non-PHI


Key contractual provisions limitation of liability indemnification

KEY CONTRACTUAL PROVISIONS – LIMITATION OF LIABILITY & INDEMNIFICATION

  • Limitation of Liability

  • Disclaimers of Implied Warranties

  • Carve-outs

    • HIPAA privacy or security breach

    • Failure to achieve “meaningful use” on timely basis


Key contractual provisions acceptance testing milestone payments

KEY CONTRACTUAL PROVISIONS – ACCEPTANCE TESTING & MILESTONE PAYMENTS

  • Acceptance Testing

    • Stages or milestones

    • Testing methods

    • Risk spreading

  • Final overall acceptance

    • Timing

  • Remedies for non-acceptance

  • Milestone Payments

    • Risk spreading

    • Increase in hospital leverage and avoidance of refund requests


Key contractual provisions pricing

KEY CONTRACTUAL PROVISIONS – PRICING

  • Pricing

  • Payment Terms

    • Limits on increases

  • Expenses

  • Financing by vendor

    • Pros

      • Opportunity to spread out payments if milestone payments not negotiable

    • Cons

      • Obligation to pay does not end if EHR fails to perform as anticipated or meet meaningful use standards

      • Potential limited access to medical records maintained by system.


Key contractual provisions final thoughts

KEY CONTRACTUAL PROVISIONS – FINAL THOUGHTS

  • Initial hospital gap analysis important

  • Compliance with “meaningful use” objectives is evolving target

  • Certification standards – continued unknown

  • Important for vendor to have “stake” in game

  • Important to know vendor: strengths, weaknesses of product, ability to deliver product as per contract

  • Important to control negotiations, contracting process

  • Project management team critical

  • Continued communication between hospital/vendor important – frequent meetings, relationship

  • Schedules, timing of implementation important


Top strategies for negotiating ehr agreements mississippi hospital association s

THANK YOU!!

Presented by:

Dinetia M. Newman

Balch & Bingham LLP

401 East Capitol Street, Suite 200

Jackson, Mississippi  39201

[email protected]

(601) 965-8169 – Phone

(888) 594-5407 – Fax

(662) 891-8935 – Cell

Armin J. Moeller

Balch & Bingham LLP

401 East Capitol Street, Suite 200

Jackson, Mississippi  39201

[email protected]

(601) 965-8156 – Phone

(888) 594-5405 – Fax

(601) 906-1083 – Cell


  • Login