Advancing Health IT and Preventing Data Blocking through Model Contract Language

Dr. Vindell Washington and Andy Slavitt | September 26, 2016

As we move to transform the health care system into one that delivers more coordinated care across various clinicians and providers, it is important that data is available to providers and patients when and where they need it. To achieve this goal of ensuring the flow of health data and, ultimately, better care, the country has invested in the technology and infrastructure to connect patients’ clinical experiences.

That is why CMS and ONC are working together to make sure this investment stays on the right track. We are simplifying regulations, taking steps to require open technology, and have released a Health IT Playbook to help clinicians assess their needs and navigate the electronic health record (EHR) market. In addition, today we are releasing an EHR contracting guide  – EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print – that will help clinicians and hospitals make sure that contract terms do not inhibit the utility of their EHR technologies. Quite simply, our health care system cannot realize the promise of EHRs if information cannot flow across practices – and to and from patients – easily and in a cost-efficient manner.

The growing maturity of the health information technology market presents health care providers with new, varied, complex, and often confusing choices about EHR systems. From the small practice manager exploring new cloud-based EHR products and services, to the CIO contemplating a major EHR procurement, making the right choice for a practice – and advancing interoperability – hinges on having reliable, easy-to-understand information. But we have heard from providers in the field, professional associations, and other observers that such information can be hard to find. Moreover, EHR contracts can be confusing and may result in data blocking and other practices that limit opportunities to use EHRs to deliver safer and more efficient care.


We have discussed data blocking in the past – the practice of knowingly and unreasonably interfering with the exchange or use of electronic health information. One way that blocking occurs and prevents data from moving to follow the needs of the patient doesn’t involve the technology itself, but the business practices that can prevent interoperability. This subtle form of data blocking can occur through language and terms found in contracts for EHRs and other health information technologies.

The new EHR contracting guide is a key resource that will help providers address data blocking and other challenges as they continue to adopt and leverage health IT to improve the way they deliver care. In today’s EHR marketplace, many vendors use “standard form” contracts when offering their products and services. Providers all too often agree to these contracts – which are prepared from the vendor’s perspective – without fully understanding the “fine print” or without negotiating rights and obligations that can ensure that the technology will meet their needs and expectations.

The new guide will equip providers (and their advisors) to ask the right questions when selecting an EHR and better communicate their requirements to potential vendors, all while managing the expectations of both vendors and providers and providing a framework for negotiating reasonable contract terms that reflect best practice contracting principles. The recommendations found in the guide also promote connectivity and protect against data being blocked – such as by unanticipated connection fees, restrictions on data exchange, or contract terms that prevent users from reporting and sharing information about the performance of their EHRs. The guide offers specific strategies to help providers as they plan for the purchase of an EHR system and negotiate key terms with their EHR vendors. In short, this guide helps hospitals and doctors cut through the clutter, and assists them in implementing a new EHR system in a way that supports their workflow and their patients.

Some topic area highlights from the guide include:

  • the critical planning steps that all providers should take to properly understand and communicate their requirements to potential EHR vendors;
  • contracting practices and negotiation strategies that providers can use to achieve fairer and more balanced EHR contracts;
  • legal rights and obligations that providers may wish to include in their EHR contracts – as well as those they may wish to avoid; and
  • practical pointers and example contract terms that illustrate how providers might implement more favorable terms in their EHR contract.

A carefully negotiated EHR contract that incorporates the approaches recommended in the guide will help maximize a health care provider’s opportunity to avoid problems when implementing and using their EHR, and will help create a more informed and balanced relationship between the health care provider and their EHR vendor. We also hope the guide will help health care providers and their health IT vendors negotiate contracts that allow the technology to connect the clinical experience among all providers and settings in a way that supports both practices and patients.

The guide, along with the Health IT Playbook, not only helps to support the interoperable flow of health information, but the Administration’s efforts to foster a cost efficient health care system. Ensuring patient data is available to clinicians – and patients – when and where it is needed can improve coordination among providers, prevent duplicative appointments or diagnostic tests, and decrease costs to patients and the overall health care system.