Strategies for Agreements and Licenses with Donated EHRs

Electronic health record (EHR) selection and implementation will inevitably be necessary to operate a medical practice with any success. The reasons many providers have procrastinated or even avoided implementing electronic records are mainly due to costs and workflow changes. It’s expensive. Thanks to the government and current federal incentives to use electronic records, medical providers are ready to participate.

Vendors as well are excited to oblige. They want your business and medical practices are hunting. But not so fast; you could make hasty decisions and be stuck in a costly situation.

One area that is receiving attention is donating EHR software as it is more cost effective for ambulatory practices. This is where a hospital can donate their EHR software to another provider and will involve agreements and licenses.

These will require careful review, and then more review. It would probably be in your best interest to seek out legal professionals who knowledgeable expert in the area of health contracts.

“In general, entities that refer federal healthcare business to physician practices are not permitted to give a practice free EHR software; doing so normally would violate the Stark statute and anti-kickback statute. In 2005, however, federal regulations applying to each were revised to allow donation of nonmonetary remuneration in the form of EHR software and certain associated services, provided that the donation met certain regulatory requirements”(2011).

There are some crucial areas regarding agreements and licenses that should be met in considering a donated EHR relationship:

  • The written contract between the parties should be comprehensive.
  • Make decisions regarding explicit agreements-vendor, donor, receiver-levels of service, training, and ongoing maintenance for example.
  • Make sure it is a nonmonetary donation.
  • Receivers can expect to pay at least 15%. Though regulations require it, donors could ask for more as well as not include on-going support or maintenance.
  • Make sure EHR software is interoperable and all agreements and licenses should state this.
  • Make sure EHR software is the same as the donor and not an equivalent version.
  • Donor EHR software must have prescribing component.
  • Separate vendor and donor agreements may be necessary.
  • Tailor license agreements with each entity to your specific needs.
  • Establish contingencies with all agreements and licenses provide protections of data in the event donor and/or vendors go out of business.

Shay, D. F. (2011, Oct.). Beware the pitfalls of EHR licenses, donations. Medical Economics, 88 (20); 75-77.