Minimizing EHR Vendor Transfer Glitches

Transitioning between electronic health record (EHR) systems is a daunting task even in the best cases—and it is even more intimidating when a practice is making the change because its vendor relationship has soured. Will the old vendor sabotage the system on the way out? Who is going to extract patient data for import into a new system? What is the provider’s liability if the EHR vendor fails to deliver? Many healthcare providers are facing these questions as they implement newer EHR technology.

Knowing and understanding the length of contract terms is the first step in evaluating termination options.

There are many reasons for a practice to seek a new EHR vendor, often stemming from software performance or lack of support. Some vendors fail to meet or keep up with Meaningful Use requirements. Others’ security may be lacking. Minor software glitches can create dangerous risks of patients being lost to follow up. Blackout times for software upgrades have the potential to shut the office down.

Once a practice identifies the need to switch EHR vendors, it should consider the logistics of the process. Being mindful of common pitfalls avoids chaos and minimizes patient disruption. Knowing when to terminate the vendor contract, who owns the software/raw data, and the extent a data transfer provider may access proprietary information to convert are keys to seamless integration into the new system.

How to End the Contract

Knowing and understanding the length of contract terms is the first step in evaluating termination options. Evaluate the EHR contract for a duration. Watch for automatic renewal clauses and unilateral termination directives, which leave practices stuck with an undesirable vendor and no exit strategy.

Most contracts are vendor-friendly. Commonly, the license agreement is perpetual, with “automatic renewal” clauses. The provider pays a fixed amount for the software up front as a “licensing fee.” Most contracts also include periodic “maintenance support fees,” usually charged on a monthly basis.

On the front end, when considering an EHR contract, negotiate a finite term to end the contract. A reasonable time frame would be one or two years. The vendor will want a notice period before termination. Providing mutual termination notice provisions is fair to both parties. However, a practice should always be allowed to terminate—for any reason whatsoever—by providing reasonable notice to the vendor. 30 days is standard.

So, what if a contract is one of the vendor-friendly never-ending relationships? Unreasonable contract terms are not favored by the courts and would likely be stricken. Before going through the trouble of hiring an attorney and going to court, consider the following:

• If the vendor simply isn’t performing, document the deficiencies. Send correspondence to the vendor identifying every glitch, lack of support, downtimes, billing errors, or meaningful use payment kickbacks. A vendor that has failed to provide the services outlined in the contract is a lot less likely to challenge the terms of it.
• Reach out to a new vendor to have the EHR system analyzed. Many times, antiquated software programs have serious security risks. If a security risk is identified, the vendor can hardly argue the provider was unreasonable in the choice to discontinue services.
• If your vendor relationship is not hostile, try to negotiate the termination process. Even if the negotiation fails, you have documented an effort to work with the vendor on the transition.

Data Transfer

EHR systems include intellectual property owned by the vendor and protected by law. Understandably, vendors want to protect their work product from industry competitors.

Clinicians often do not think to challenge broad intellectual property right provisions contained in their EHR vendor contracts. After all, who cares about “intellectual property” when caring for a patient? However, vendors have a right to protect their trade secrets, and providers do not have the right to share proprietary information. This is especially true when a provider grants broad access to a new vendor—who is also a competitor of the old vendor.

The healthcare information a practice collects from its patients and enters in the EHR system is not the EHR vendor’s intellectual property. Any contract provision transferring patient data ownership is illegal and void. An outgoing vendor may never retain or block a healthcare provider’s access to patient data. Any vendor suggesting otherwise should be carefully scrutinized.

Likewise, broad language in any contract declaring intellectual rights or trade secret protections should raise a red flag. If the software design does not allow for patient data extraction without downloading the vendor’s proprietary information, your patient data may be blocked from extraction.

Question any incoming vendor about how patient data is stored. Ideally, patient data should be stored on the practice’s server and only formatted with the program. Have the vendor explain the data extraction process. Find out what format the data will be in once extracted. A reputable vendor will give assurances that the data will not only be capable of extraction but will also be readable when extracted.

Data Conversion & Extraction

Converting patient data from old to new EHR is known as “data conversion”—a crucial step in the transition process. Because EHR vendors store patient data in a conveniently customized format, the outgoing company has an advantage.

Providers often ask, “Does the outgoing EHR vendor have to assist me with the data transition?” Ideally, yes. The outgoing vendor should assist in responsible data transfer. Yet the vendor’s incentive to help is limited. If the outgoing EHR vendor is not willing to cooperate with the data transfer or is not working with the healthcare provider in good faith, the new EHR vendor may be able to provide its own software tools to accomplish the task. The best practice is to reach an agreement requiring cooperation on transition support services for data conversion and extraction when negotiating the terms of the contract rather than when ending it.

Coordination Between Vendors

Along the same lines, the outgoing vendor has every reason to charge exorbitant prices for any data transfer. Cooperation between old and new vendors is ideal. A cooperative process alleviates concerns for software infringement and data extraction time frames. Working together also minimizes patient and office disruption. Offering a legal non-disclosure agreement or confidentiality agreement signed by the new EHR vendor may be all an outgoing vendor needs to feel secure their intellectual property is adequately protected and cooperate with the transfer process.

Not dissimilar to the clinical evaluation process, early detection, discussion, and preventative care is the preferred course when working with EHR vendors. As with many relationships, communication is paramount and would ideally take place in the negotiation process and be reflected in the contract. Unfortunately, this is not always the case. Providers should make an effort to work with the vendor and document all communications.

Like it or not, EHR is a part of clinical practice today. It is incumbent upon all clinicians to understand the system, the process, and the vendor contract terms. In the end, a vendor is just a software provider and owes no duty to a practice’s patients. Practices are accountable for patient safety, care, and confidentiality. When considering the transition process, invest the time to understand the contractual terms and plan an organized process, or consider hiring a qualified legal consultant to assist in the transfer.