Financial & Legal Services   

WHO NEEDS A LAWYER?

Every practice needs some legal assistance in approaching EHR (or CPM) deployment. This may not be a live lawyer, but the contracts you sign to acquire your EHR or license it, provide the only leverage you have after the sale of holding your EHR vendor to the commitments that they made to you in selling you the system. Get it right in the contracts and avoid a lot of misunderstanding in the future. A practice needs to protect itself from its EHR partner. Remember, many EHR vendors will be changing corporate identities over the next 5-10 years. The ones that don't get market traction will fail. If they do, having clauses in the contract that make the actual source code available to the practice (only in the event of failure) can be key. Others will grow and thrive and attract the attention of larger companies. Also, many mid sized EHR vendors are seeking to grow big enough to be acquired, so their founders and investors can cash out. In such cases, the verbal representation of the personnel who originally sold you the EHR, or even the policies they have been supporting you under, are all likely to change when the larger company acquires them -- unless you have the requirements in writing and part of the EHR procurement documents. These will survive when the "new owner" takes possession of your previously small and responsive former vendor.

WHAT'S OUT THERE?

Various well-intentioned organizations are developing "prototype or boilerplate or generic" legal agreement which their members (or the general practice) can obtain and use as the basis for negotiation with EHR vendors. Apart from the scope and quality of these individual agreements, their legality is a matter of STATE law, meaning that their validity depends on what state has jurisdiction, something that will be spelled out in the contract. A contract, which may be well-written, legal and effective in one state, may have some provisions that are not applicable or enforceable in another. So, if you are going to use boilerplate agreements, you are still going to need  a lawyer who is familiar with the laws of the state that has jurisdiction over the contract (which may or may not be the state where YOUR practice is located). Point of jurisdiction is always a matter for negotiation in purchasing agreements and can have a dramatic impact on cost if you ever have to pursue legal recourse.

Register here to find Here is a list of such organizations offering boilerplate language, as well as a list of legal firms whose services may be of value. We do not recommend any of these firms nor warranty in any way their suitability for consulting in these matters. Rather we simply list them as candidates to be evaluated for legal assistance that EHR procurement will required.

SCOPE OF THE PURCHASE AGREEMENT

If you are undertaking an phased or bridge strategy EHR to deployment, the initial purchase agreement is even more important, as it should be written to apply and govern all subsequent purchases in subsequent phases of the deployment. Be extremely careful about signing documents or vendor terms and conditions for components that are acquired in subsequent phases of the deployment that SUPERCEDE the legal agreements and terms you so carefully worked out at the beginning. Otherwise, all your good initial legal work can be undone in an instant. Put specific clauses that reference the original agreement and the supremacy of its terms in all subsequent purchasing documents and make sure the vendor acknowledges them in accepting your orders.

Also be sure that the requirements for ALL phases of the staged deployment are contained in the initial purchase document, in the way of a time table and feature summary. Otherwise, when its time to deploy later phases, disagreements about what was to be deployed may arise - at a time when you are already too committed to back out and have no legal recourse with the vendor, and must accept what they have available whether it is what you agreed to or not.

Financial Service Required

Two tasks are paramount in preparing to move from a paper-based practice to an electronic practice. One is a cash flow analysis that is patient condition (CPT-code) specific. On which types of patients are you currently making or losing money? What is the average reimbursement for each type of patient encounter, and what are the high and low outliers? What is the contribution to costs that each provider makes - from the receptionist to the nurse practitioner to the physician assistant and physician. What involvement does each have and what cost do they contribute to the overall encounter cost? Having some computerized accounting system (such as Quickbooks) is an essential but not-sufficient pre-requisite. It may be that raising this question with your accountant will require that a more sophisticated accounting system will be required or some modification to the type of accounting you are doing will be instituted. What we are talking about here is commonly referred to as detailed cost accounting. Without it, you really can't understand the nuts and bolts of how your practice operates financially. The best person to call is your current accountant, who presumably understands how your business is currently functioning. If you perform your own accounting service in-house, you may wish to engage an outside accounting firm for an independent review or recommendations on accounting system updates.

Be warned that outside accounting firms, particularly big name firms, can be just as expensive as big name legal firms. We have provided a list of some of these firms for our Members, but we do not "recommend" any of them, nor can we attest to their work. We simply provide them as a starting point for those practices that require such services.