Elayne E. Greenberg, Professor of Legal Practice, Assistant Dean of Dispute Resolution Programs, and Director of the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law, has published “Hey, Big Spender: Ethical Guidelines for Dispute Resolution Professionals when Parties are Backed by Third-Party Funders,” Forthcoming in Arizona State Law Journal Spring 2019; St. John’s Legal Studies Research Paper No. 19-0002.

Late last year, hotel giant Marriott International disclosed a data breach that began in 2014 and affected approximately 500 million Marriott and Starwood Preferred guest accounts. 

Earlier this month, the Supreme Court of Texas was asked to consider whether the Beaumont Court of Appeals committed error when it refused to vacate an arbitrator’s $460,000 legal malpractice award.

The Supreme Court of the United States has issued an opinion stating a court must decide whether one of the exemptions included in Section 1 of the Federal Arbitration Act (“FAA”) applies to a case prior to ordering the dispute to arbitration even if a valid delegation clause exists. 

by Holly Hayes On November 17, 2010, the Centers for Medicare & Medicaid Services (CMS) established the CMS Innovation Center. The Center will “examine new ways of delivering health care and paying health care providers that can save money for Medicare and Medicaid while improving the quality of care.” The Innovation Center will consult stakeholders across the health care sector including hospitals, doctors, consumers, payers, states, employers, advocates, relevant federal agencies and others to obtain direct input on its operations and to build partnerships with those that (are) interested in its work. The organization will also test models that include establishing an “open innovation community” that serves as an information clearinghouse of best practices in health care innovation. The Center will also work with stakeholders to create learning communities that help other providers rapidly implement these new care models. “For too long, health care in the United States has been fragmented-failing to meet patients’ basic needs, and leaving both patients and providers frustrated. Payment systems often fail to reward providers for coordinating care and keeping their patients healthy reinforcing this fragmentation,” said Donald Berwick, M.D., CMS Administrator. “The Innovation Center will help change this trend by identifying, supporting, and evaluating models of care that both improve the quality of care patients receive and lower costs.” The new website will be updated in the coming months. You may subscribe at the site to receive the RSS news feed or updates by email. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com. Technorati Tags: Mediation

by Holly Hayes Physician News Digest posted a beginner’s guide to negotiating an Electronic Health Record (EHR) software license agreement. EHR contracts are similar to other software license agreements, but issues specific to health care, including provisions related to HIPAA and “meaningful use” provisions, need to be addressed. The guide focuses on five key areas of a software license agreement (SLA): User license Implementation Service obligation Hardware and interfaces HITECH Act clauses User License — We begin our tutorial with the user license for one main reason: you will almost always be able to negotiate licensing costs. In enterprise software negotiations, some vendors offer as much as a 20% baseline discount (source). Small practices likely won’t come close to this level of discount, but it gives you an idea of how much room you may have to bargain. Before talking about price, you’ll need to define “user.” An EHR license agreement is unique in that a single user license may include multiple employees. For example, a user license for one MD may include mid-level providers (nurses and physician’s assistants), as well as administrative staff. Alternatively, you might use a tiered pricing structure with one high cost for MDs, a lower cost for mid-level providers and an even lower cost for administrative staff. Finally, “site” and enterprise licenses exist for large medical facilities and hospitals. After defining “user,” several questions still need to be addressed. Is there a limitation on how many computers the software can be installed on? Can it be used at multiple offices? Can the license be sold or transferred if the practice is sold or merges with another company? It is important to anticipate possible scenarios of how, where and who will access the software, then address these in the contract. Implementation — Not all software vendors offer implementation services – some rely on a network of value added resellers (VARs) to provide implementation services – but it is still worth discussing here because of the high costs. For every dollar the EHR costs, you can expect to pay at least one dollar for implementation services. In larger offices or more complex environments, this ratio can be even higher; a two-to-one or even five-to-one ratio is not uncommon. Implementation costs are based off hourly rates and an estimate of hours to complete the setup. It can also be based on monthly rates, which is sometimes cheaper. In some cases, the vendor will provide a fixed cost, but that is less common. Regardless, it is important to settle on implementation expenses in the initial agreement. You’ll have the most leverage during the negotiation process and prices will likely go up after you are in a contract. After negotiating costs, you’ll need to agree on the details of the implementation process. For example, who will be responsible for transferring data into the new EHR? Will you be transferring data from another system or from paper records? What are the costs? You should also develop an implementation timeline, determine what kind of strategy you’ll pursue (e.g. “phased rollout”) and decide which implementation activities the vendor will be responsible for. Poor planning is a leading cause of failed software implementations, so be prepared. Ongoing Service Obligations — Next, we address the service obligations, or support, updates and maintenance. Depending on the length of your contract, the service agreement will be the second or largest expense of your EHR software purchase. It is not uncommon for maintenance and support to be as much as 20% to 30% of the original software purchase price. Each part of the service section deserves attention. Here are a few key considerations to begin with: Support – What hours of support will be available? Does it include telephone support, in-person technical support, or both? What happens if the EHR vendor doesn’t meet the support requirements? Will the contract include a clause for negligence of support and require vendors to face a penalty – either monetary or other? Updates – How often will updates be rolled out? Are you required to install all updates? Keep in mind, changes to the functionality of the EHR could affect your workflow and office efficiency. Maintenance – What new software releases are included in the maintenance agreement; for example, does the agreement just include patches for bugs, are are new functional capabilities included? How are the maintenance fees calculated? Training – How many hours are included? What does it cost if you exceed the specified hours? Who will be trained and where will they be trained? Will you be charged for travel-related expenses for on-location training? Hardware and Interfaces — Next, on to hardware. In addition to discussing hardware with your EHR vendor, be sure to compare prices from third party vendors. You should be able to get hardware specifications from your vendor’s website or just by request. You can then use this information to get price quotes from other hardware vendors. You might find a better price elsewhere or just have extra leverage when it comes time to negotiate with the EHR vendor. Conversely, the integration or interfacing of devices is better left to the EHR vendor. This can include everything from scanners and faxes to more complex devices like laboratory information systems and electrocardiogram (ECC/EKG) equipment. Make sure your agreement clearly identifies who will provide ongoing support for interfaces. You don’t want to get stranded if both the EHR vendor and device manufacturer claim the other should provide support. HITECH Act Clauses — Several EHR software vendors have started adding provisions for the HITECH Act into their license agreements. As details about “meaningful use” and “certified technology” are revealed every few months, it’s important to make sure this section is up to date. Additionally, with thousands of dollars at stake, it’s important to identify any ambiguities. What happens if you fail to achieve meaningful use? Do you receive a reimbursement covering the full amount of Stimulus Bill incentives? Or are you only reimbursed for the cost of the software? Ultimately […]