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Good Contract Key to Avoiding Vendor Lock-Out of Medical Records

October 13th, 2016

PRESQUE ISLE, ME – When the Office of the National Coordinator for Health Information Technology (ONC) issued contracting guidelines and a checklist for electronic health record (EHR) vendor selection through its National Learning Consortium, a key piece of advice appeared in the first section: The contract with a medical practice “should spell out what happens in the event of default by either party and should be as evenly weighted as can be possibly negotiated.”

The consequence of not doing that – or in choosing a vendor who fails to abide by the contract -- has been illustrated by some recent disputes in Maine and Wisconsin.

According to The Boston Globe, the medical records vendor for a clinic, Full Circle Health Care in Presque Isle, ME, blocked access to medical histories on its 4,000 patients.

That vendor, CompuGroup, a German health technology company with U.S. offices in Boston, delivered an ultimatum through e-mail: Until Full Circle Health Care paid $20,000 in overdue charges, the electronic health records would remain locked. When the newspaper asked about it, the company compared the situation to a utility customer who stops paying bills.

“I’m incredulous they think it is OK to hold us hostage like that,’’ E. Victoria Grover, PA-C, who owns and operates Full Circle, told the Globe.

Grover said the practice with 10 employees stopped paying CompuGroup $2,000 in monthly fees about 10 months before access to medical records were blocked. She maintained, however, that the action came after months of bitter negotiations over increased and unexpected maintenance fees and charges for never-delivered hardware.

Even though she hired another electronic health records vendor this year, the practice’s old records controlled by CompuGroup can’t be moved into the new system, Grover said.

Now, the Office of Civil Rights in the U.S. Department of Health and Human Services says it will look into the matter.

Disputes such as these are rare but not unheard of. In 2013, a federal judge in Wisconsin refused to grant a restraining order sought by the medical practice in Milwaukee Health Services Inc. v. Business Computer Applications Inc., noting that the records would be unfrozen as soon as the bill was paid. In the Milwaukee case, the providers had filed an affidavit saying that some gravely ill patients needed their medical records.

Part of the complication for Full Circle in Maine is that its electronic medical system initially was purchased in 2010 from HealthPort, a Georgia-based company, but the vendor was sold a few months later to the German company, which changed the fee schedules, according to the Boston Globe report.

So how can medical practices avoid these problems? The answer, according to the ONC, is all in the negotiating process.

“The contract should spell out who owns the data (clinic should have complete data ownership) and that the data will be returned in a nonproprietary form (standard, interoperable) should the agreement between the two parties be terminated for any reason,” according to guidelines.

Federal officials urge clinics to focus on the duration and termination clauses to make sure “a practice should be able to ‘free’ itself from this with relatively little organizational pain. (No handcuffs or shackles.)”

In addition, the guidelines recommend, physicians practices should anticipate the different ways a vendor could terminate an agreement and create contingency plans.