EHR Automation Legality: Can Vendors Stop You From Scraping Your Own Data?

We recently explored whether practice management systems and electronic health record (EHR) vendors could legally prevent you from extracting your own data via automated tools like RPA (Robotic Process Automation) scraping. The question of EHR automation legality has become increasingly important as healthcare organizations seek more efficient ways to access and utilize their own data.

Analyzing EHR Vendor Contracts

In our investigation, we conducted a deep dive into three major EHR vendors: eClinicalWorks, Kareo, and Epic. The initial findings were interesting—two out of the three vendors do not have any clause that appears to restrict automated data extraction. eClinicalWorks, however, stood out with language that warranted further examination.

The EHR automation legality question around eClinicalWorks’ terms was particularly challenging because their clause was cumbersome, ungainly, and difficult to interpret. It contained numerous conditional statements that made it challenging to understand the exact restrictions.

Legal Analysis: Civil Matter, Not Criminal

One question we’re frequently asked: “If an EHR contract explicitly prohibits automated data extraction, is violating that clause illegal?” Many assume it would be, but there’s an important distinction to make.

According to our legal consultation with an experienced litigator, such restrictions fall under civil law, not criminal law. Violating these terms would constitute a breach of contract rather than a crime. This distinction is fundamental to understanding EHR automation legality—no matter how the contract is worded, breaking these terms doesn’t make you a criminal; it creates a potential civil dispute.

Interpreting eClinicalWorks’ Ambiguous Language

The eClinicalWorks clause hinges on the phrase “purposely made available through the services.” Their apparent intent is to prevent automation for functions not explicitly offered through their platform. Since eClinicalWorks sells data access services through APIs and interfaces, they have a financial incentive to restrict free automated data extraction.

However, the clause’s ambiguity creates interesting legal implications. As our attorney noted, he has litigated cases before state Supreme Courts over something as small as a comma. In contract law (particularly in states like Delaware and New York where many corporations are based), ambiguity typically works against the drafter of the contract. If eClinicalWorks’ terms can be interpreted in multiple ways, the ambiguity could potentially favor the client in a legal dispute.

Practical Considerations: Detection and Enforcement

Beyond the theoretical EHR automation legality questions, there are practical considerations:

1. Detection: We’ve created numerous automation bots within eClinicalWorks without detection, and we weren’t employing any bot evasion technology. This suggests vendors may not be actively monitoring for automated scraping.
2. Enforcement likelihood: Even if discovered, would vendors actually take action? Sending a cease and desist letter is one thing, but terminating a contract with a paying customer seems financially counterproductive in a competitive market where clients can easily switch to another vendor.

According to healthcare regulatory experts, EHR vendors face increasing pressure from regulations like the 21st Century Cures Act to facilitate, not restrict, data access for authorized users and purposes, making aggressive enforcement of anti-automation provisions potentially problematic from a compliance standpoint.

Risk Assessment for Healthcare Organizations

For healthcare organizations considering automated data extraction, the risk assessment framework from Health IT Security suggests evaluating:

1. Contract specificity regarding automation
2. Detection probability
3. Vendor’s history of enforcement
4. Alternative access methods available
5. Critical business need for the data

When reviewing your own situation regarding EHR automation legality, consult with legal counsel familiar with healthcare IT contracts. This is especially important when evaluating how your medical billing dashboards or RCM analytics solutions obtain their data.

An Interesting Exception: Data Input Automation

One final observation worth noting: While eClinicalWorks’ terms contain language that might restrict data extraction, they say nothing about pushing data back into their system via automation. This means automating functions like payment posting or charge entry appears unrestricted by their terms of use—unlike data extraction.

This gap in EHR automation legality provides interesting opportunities for efficiency gains in areas where data input, rather than extraction, is the primary bottleneck. Healthcare organizations might consider starting their automation journey with these input processes while carefully evaluating the contractual risks of automated extraction.

Conclusion

While this analysis should not be construed as legal advice, it provides helpful context for understanding the current landscape of EHR automation legality. The reality seems to be that:

1. Contract language varies significantly among vendors
2. Enforcement appears minimal at present
3. The civil (not criminal) nature of potential violations changes the risk calculation
4. Ambiguous contract language may not hold up in court
5. Vendors have financial disincentives to strictly enforce these provisions

As healthcare organizations continue their digital transformation journeys, finding the right balance between efficiency, compliance, and risk management remains crucial. When in doubt, consult legal counsel familiar with both healthcare IT and contract law to evaluate your specific situation.