Written by Stevie Davidson Sunday, 11 April 2010 19:56

I wanted to share a recent contract experience, and I must say that I am learning a big lesson myself on this one!  Reviewing and negotiating contracts and support agreements is a very grueling process.  Having done this for many years, and in multiple industries, it never fails that I find myself shaking my head in disbelief at how much this industry is in its infancy when it comes to this subject. If there is one thing that I would beg every single physician, or other healthcare professional that is procuring an EMR or PM solution, is to please make sure that you budget to have your contract reviewed by someone that is an EMR contract specialist along with your attorney.   

So what the heck am I talking about?  Many practices do not see the value in paying for someone to review, redline and negotiate their contract with an attorney.  The attorneys that I work with, and most will admit, they do not know the operations and "gotchas" of EMR implementations.  They look for the legal "gotchas", and make sure the internal workings of the contract and exhibits are consistent and legally sound. NOTE:  EMR contract language is clear, and redlining it is the easy part.  It is the language that is missing from your contract that will bite you.  That is what you need to worry about more than anything.

The situation I am in now is one that I can ensure you will never happen to me or a client of mine again.  I was asked to review and negotiate an EMR vendor contract.  This is the first time I was paid to review and negotiate this vendor's contract comprehensively. Remember I just said I find myself shaking my head in disbelief?  The contract had typical language like all other EMR contracts that is one sided. I went through my normal process and spend hours reviewing the magnitude of issues with the vendor to find out they don't have a corporate attorney. I was working with the CFO who is relatively new, very smart and very pleasant to negotiate with.  The downside is that he can't structure legal language and now it is all on my client.  Okay, so I assumed that this successful EMR company of over 500 contracts had in-house counsel.  Well I will never make that mistake again!  The vendor very eloquently told my client and I that they will review our redline, we have to create 95% of the missing language, and they plan on NEVER using the contract again. So my client has to incur the expense of having their attorney and I create sections of language.  My client is so disgusted they don't even want EMR anymore.  We will get this deal done, and I will ensure that they have a solid contract even if I have to do it for free out of principal. How disheartening is this?  This vendor has a wonderful product, and the company and their staff is really great to work with. They usually make it to most of our RFPs.  I am so disappointed.

What is the moral of this very long story?  

EMR vendors know they can get away with murder.  These contracts are for them, not you.  It is easier to put language in knowing the best of the best attorneys will review, not see much wrong with, and negotiate a bit on the legal terms and finalize. You want to know the best part?  I was told that large nationally recognized consulting firms didn't even give them such a hard time about their contract as I did!  Well shame on those firms who didn't do their job.  I told the vendor either the firm was not paid to review at that level and just gave basic feedback, or they shouldn't be selling that service.  Everything I found were issues that any EMR consultant with solid implementation and contract experience would have addressed.  

So please, if there is one thing you must not compromise on it is your contract and support agreements. The investment in time, resources, and dollars is far too great to not see the value.  As I told this vendor and I have told many others, your days of taking advantage of small physician practices to hospitals and other organizations will come to an end.  It is in their best interest to be ready with a solid contract offering that will put them in front of their competition at the closing of a deal.  

They get it, but they don't want to do it.  Right now they don't have to.  If you don't use a combination of a consultant and an attorney, then find an attorney that specializes in EMR contracts.  Remember, an EMR vendor's best customer is an uneducated one.

Until next time.....Stevie