A September investigation into the contracts of major EHR vendors revealed some include built-in clauses preventing providers from sharing information about glitches. The initial concern over this discovery was that providers' inability to report EHR hiccups could affect patient safety. However, the worst implications for contractual restraints may be for research that requires access to EHR data to improve patient care.
"The true 'gag clause' problems with EHR vendor contracts appear to be related to the confidentiality and intellectual property terms, which are overbroad and unclear, and limits on 'authorized uses' of the EHR, as those terms apply to research and reporting that requires access to the EHR and use of screenshots," Kathy Kenyon, former senior policy analyst for the ONC, wrote in a blog post for HealthAffairs.
It would be reasonable to expect to find such restraints in an EHR contract, Ms. Kenyon wrote. The real concern arises when the vendor's policy bars the use of the EHR for research, or is unclear about use limitations. Generally, when researchers are allowed to use an EHR, they are bound by confidentially terms and nondisclosure agreements that give vendors degrees of control over the research itself. This can lead to biased research, among other things, and researchers can incur serious penalties for violating these clauses.
Ms. Kenyon recommends the following expectations for EHR vendor contracts in order to help build a consensus about research between all stakeholders:
• Vendors should use contractual language that doesn't disparage researchers, discourage EHR criticism or prevent evaluations of EHR performance.
• Contractual language should not inhibit accurate and complete reporting of any unsafe conditions or adverse events, regardless of their cause. This includes preventing examples of EHR content, such as screenshots, from being used.
• Vendors should not use language that limits the actions of organizations receiving reports of patient safety incidents through their software.
• Contractual language should clearly authorize access to and use of the EHR for research.
• Researchers should not be made to agree to intellectual property, non-disclosure or confidentiality concerns.
Read the full post here.