A hospital that provides free electronic "interface" to community physicians who request that access would not run afoul of the federal anti-kickback statute, according to a new advisory opinion issued by the U.S. Department of Health & Human Services' Office of Inspector General.
In the opinion, released Dec. 19, a hospital proposed to provide free access to the interface so that physicians could transmit orders to lab and diagnostic services and receive the results. The hospital also said it would provide, through a contractor, support services necessary to maintain the interoperability interface. The physicians would remain responsible for all aspects of their own electronic health records, including hardware and connectivity services.
OIG found that, in general, free services to referral sources are suspect under the anti-kickback law. In this case, however, the free interface would not constitute "prohibited remuneration" to the physicians.
"Under the Proposed Arrangement, Interface access would be integrally related to the Requestor's services, such that the free access would have no independent value to the Physicians apart from the services the Requestor provides. Accordingly, we conclude that the Proposed Arrangement would not, under these particular facts, implicate the anti-kickback statute," the advisory opinion said.
OIG advisory opinions apply only to entities that request those opinions. However, they provide important guidance to the industry as to how OIG views various arrangements.
OIG issued an advisory opinion regarding EHR use in December 2011 that gave the green light to a proposed arrangement that allowed providers to share medical data stored in EHRs for the purpose of referring patients to each other.
To learn more:
- read the new opinion (.pdf)