According to Modern Healthcare, several HIT vendors, including GE Healthcare, NextGen Healthcare Information Systems, and Athenahealth, will guarantee that their EHR products will meet or "evolve to meet" the federal requirements for "meaningful use," even though such requirements have not been promulgated yet by CMS. In fact,
Athenahealth recently upped the ante by guaranteeing that, not only will the company's AthenaClinicals Internet-based electronic health-record service meet federal standards, but the doctors who use it will receive a bonus payment for the 2011 program year under the terms of the [HITECH Act].
The HITECH Act provides for a first-year incentive payment of $18,000 for those eligible professionals who achieve meaningful use of certified EHR technology in 2011 or 2012, instead of a first-year payment of $15,000 thereafter.
Some vendors hope that such guarantees will spur activity in the market, persuading some reluctant healthcare providers not to wait until CMS issues its final "meaningful use" regulations next year. There is also some doubt whether such guarantees apply to each vendor's existing customers or solely to new customers.
However, whenever a healthcare organization enters into an EMR purchase or license agreement, it must obtain strong warranties from the vendor that its product(s) and system will meet the applicable federal requirement standards at time of issuance of such standards, as well as for duration of the applicable license. "Meaningful use" requirements will likely change over the life of a license, and a vendor's obligation to meet such evolving standards is absolutely essential. Healthcare providers must also include proper remedies and appropriate carve-outs from vendor's limitation of liability for a vendor's breach of such warranties.
Of course, such warranties are just the tip of the iceberg. If meeting "meaningful use" criteria is essential to your healthcare organization, your EMR license agreements should include robust testing and acceptance provisions; vendor warranties regarding meeting major milestones on time; warranties regarding compliance with patient information privacy and security laws; clauses securing your ownership and access to patient data, along with many other significant provisions.
"HITS Beyond: IT vendors say products will meet unknown guidelines," Modern Healthcare (September 28, 2009).