President Bush’s recent call for movement to electronic medical records (EMR) reflects the fact that health care providers of all shapes and sizes have already begun to implement EMR and other computer-based practice management systems.  Our firm has been called to advise numerous health care clients regarding contracts with such providers.  It is important that any health care provider - regardless of size - that is considering a move to an EMR system from a paper-based records system, or any provider changing or upgrading EMR systems, carefully analyze the product to make sure that it meets the needs of the provider's specific clinical and business practices and that the costs and functionality of the system are clearly understood ahead of time.  A rush to a new system without these considerations can be a management and economic disaster for a practice--and a huge expense to unwind or remedy. 

A checklist of factors to consider when assessing the merits of an EMR system should, among other considerations, include the following:

• What functions do you want the EMR system to perform?

• Viewing patient medical records
• Documentation and creation of medical records
• Electronic prescribing/ordering of tests
• Data analysis and reporting
• Patient scheduling
• Coding and billing

Not all EMR systems are created equally, and some functions may be unavailable with certain systems or may cost extra as unanticipated upgrades or optional features.

• Which personnel are covered as licensed users of the system?

• Only physicians?
• Other licensed practitioners (e.g., P.A.s, N.P.s)?
• Only specifically enumerated providers?

Be aware also of whether substitution of licensed users is permitted without extra cost in the event that a licensed user retires or otherwise ceases employment or is reassigned to a position in which access to the EMR system is not required.

• What kind of training and technical service and support is provided?

• Is training and support available on a timely basis?
• Are there extra charges for these services, or is it included in the overall license fee?
• Are the fees for these services charged regardless of actual utilization?

• Are upgrades and new version releases made available free of charge? For a fee set in advance? Who decides what’s an “upgrade” or a “new version”?

• Is ownership of, access to and protection of data relating to your Practice clearly specified in a manner satisfactory to you and in compliance with HIPAA?

• Will your Practice’s data be located on a remote server across the country?  If so, do you have the option of moving data to a local server?

• Will there be scheduled downtime for maintenance during which time your data is unavailable?

• What termination rights do you have if things don’t work out?

• How expensive will it be to buy your way out of the contract?
• How is your data transferred to you upon termination of the contract (read only copies of the data – as versus read, write and fully searchable)?

While an EMR system may provide significant advantages over a traditional paper-based system, providers need to diligently research any such system before taking the plunge in order to ensure that it is a good fit with their practice and personnel.  Keep in mind also that EMR systems must be planned in ways that comply not only with the HIPAA Privacy Rules (which apply to both “paper” and electronic patient files) but also the HIPAA Security Rules (which apply to electronic patient files only), to make sure that the confidentiality, security and integrity of such records is safeguarded to the greatest extent possible.

Our attorneys have experience in advising clients on EMR systems and in negotiating EMR and practice management contracts with service providers.  We also have experience in time-critical advice as to EMR systems which have failed and need immediate attention--including (when appropriate) exit strategies and damage claims.  In both cases, we often work closely with EMR consultants, whose technical expertise and contributions are generally a necessary and key element in the proper planning for new, or finding a remedy for deficient existing, EMR systems.  If you have any questions about EMR systems, please contact the Taft attorney with whom you work most often or any of the Health Care Practice Group members listed to the right of this bulletin.