What To Look Out For In Telemedicine Technology Contracts

The right telemedicine technology is crucial for a successful telemedicine practice. Implementing this technology often involves entering into a contract with a third-party supplier. With numerous telemedicine technology providers available, each with varying reputations and quality commitments, it is important for physician practices to invest significant time upfront in selecting a provider that meets their needs and with which they feel confident. Healthcare providers often sign standard agreements without fully reviewing or understanding the terms. It is crucial to carefully review and negotiate these agreements to avoid potential issues. Here are some things that you should be on the lookout for.

What Should I Look For In a Telehealth Vendor?

Before you get to the contract stage, there are some things you should be on the lookout for with respect to potential telehealth vendors.

Costs – Now and In the Future

• Ensure the platform’s pricing structure aligns with your budget while considering any hidden fees for setup, maintenance, or upgrades.
• Confirm the platform’s ability to scale as your practice grows.

Integration with Your Existing Systems

• Look for a platform that integrates seamlessly with your Electronic Health Records (EHR) system.
• Check if the vendor supports interoperability with other healthcare platforms to streamline workflows.

Regulatory Compliance

• Ensure the vendor complies with HIPAA (Health Insurance Portability and Accountability Act) to protect patient privacy.
• Verify the platform meets any state-specific telehealth regulations, particularly if you practice across state lines.
• Check for compliance with any additional healthcare standards, such as the HITECH Act.

Usability and User Experience

• Test the platform’s ease of use for both healthcare providers and patients.
• Ensure the platform offers a mobile-friendly interface for accessibility across various devices.

Vendor Reputation

• Research the vendor’s reputation in the telehealth industry, looking for reviews, case studies, or testimonials.
• Verify their track record for customer satisfaction and support quality.
• Ask for references from other healthcare practices that have used the platform.

What Things Should I Be On The Lookout For In the Contract Itself?

There are a number of things that you should be on the lookout for when entering into a contract with a telehealth vendor. Here are some aspects that are often overlooked but can lead to major issues down the road.

Data Security 

With the vast amounts of data handled by telehealth platforms, it is crucial to ensure robust data security measures. Special attention should be given to cybersecurity issues, including the extent of liability for data breaches, the vendor’s share of responsibility, and the procedures for addressing and remedying HIPAA breaches or cyberattacks. Confirm robust data encryption protocols are in place to secure patient information. Review the vendor’s cybersecurity measures to prevent breaches and unauthorized access. Ask about their history with data breaches or hacking incidents and how they’ve responded. Asking vendors questions about these issues will help providers gauge the vendor’s expertise and preparedness for handling such incidents, providing reassurance to both parties during the contracting process. Additionally, it’s important to inquire about cyber liability insurance and ensure it is sufficient to protect both parties in the event of a breach. Cyber liability insurance is essential for covering potential financial losses resulting from data breaches and cyberattacks. 

Indemnification Clauses

For indemnification provisions, it is important to negotiate specific carve outs to ensure providers are protected from certain actions or omissions by the vendor. The terms will vary depending on the telehealth product, the scope of services, and the provider’s size and capabilities. Careful negotiation is required to ensure these carve outs work effectively with the limitation of liability provisions.

Limitations on Liability Clauses

When dealing with limitations on liability clauses, it’s crucial to ensure that a telehealth software vendor’s liability is not unfairly restricted. Standard contracts often favor vendors by excluding liability for incidental, consequential, or punitive damages, or by setting liability limits that are disproportionately low. This can leave healthcare providers vulnerable to significant losses from vendor negligence or data breaches. Providers should negotiate these clauses to balance the liability and protect themselves from potential costly repercussions, ensuring fair and reasonable adjustments to the terms.

Scope of Work Provisions

When negotiating agreements, many providers and vendors tend to concentrate on the terms and conditions, overlooking the Scope of Work document, often attached as an exhibit. This approach is misguided. Providers and their legal teams should give careful attention to the Scope of Work, negotiating it thoroughly to ensure critical expectations—such as timelines, implementation, support, maintenance, and problem-solving—are clearly defined. Providers frequently miss the “service levels” hidden in the Scope of Work, which could stipulate unreasonably low uptime for the platform. Check for clearly defined support and maintenance terms, including response times and troubleshooting methods. Ensure that there are provisions for regular updates, bug fixes, and cybersecurity patches. Ensuring the Scope of Work aligns with expected service levels, such as near 100% uptime, is just as essential as the main contract itself.

Termination Clauses

The contract should clearly outline the conditions under which either party can terminate the agreement, as well as the process for ensuring a smooth transition in the event of termination. Be clear about the circumstances that would justify terminating the contract, such as vendor non-performance, data breaches, or failure to comply with regulations. Define the vendor’s responsibilities in facilitating a smooth transition to another platform, including exporting data and ensuring continuity of care for patients during the transition.

Speak With a Knowledgeable Telehealth Attorney

Providers eager to adopt new technology and enhance patient care may rush into agreements without proper negotiation or attention to detail. This practice can lead to unintended obligations or issues that could have been avoided with more careful scrutiny. Through reasonable negotiation, healthcare providers can reach an agreement that strengthens their relationship with technology vendors and enables the telehealth service to thrive. Contact an experienced telehealth attorney today to review contracts with telehealth vendors.