CMS issues rules to update, extend EHR donor protections

The Centers for Medicare & Medicaid Services has ended speculation regarding the fate of protections allowing hospitals to subsidize electronic health record system purchases by and for physicians. On Monday, CMS filed a proposed rule published in the April 10 Federal Register tweaking the current regulations and extending the date that the protections would sunset. Currently, the Stark law contains an "exception" to its prohibition of such donations; the anti-kickback law contains a "safe harbor" allowing these donations. The protections are slated to end Dec. 31, 2013. 

CMS proposes to update the provisions regarding the interoperability requirements to align them with the Office of the National Coordinator for Health IT's certification program, and to eliminate the electronic prescribing capability requirement. The latter now is covered by subsequent legislation that created incentives for prescribers to adopt electronic prescribing and no longer necessary. 

Most significantly, CMS proposes to extend the sunset date to at least Dec. 31, 2016, but will consider extending the donation protection even further. 

The agency also is asking for comments on several additional provisions, such as the type of donor that should be protected, data and referral lock in concerns, and the definition of covered technology. 

CMS' proposed rule applies to the Stark self-referral laws. It notes that the U.S. Department of Health & Human Services' Office of Inspector General is proposing almost identical changes to the corresponding "safe harbor" donation protection in the anti-kickback law, and that comments on the regulations may be reviewed together. 

Comments are due within 60 days of the rule's publication date. 

CMS and the OIG created these protections from the Stark and anti-kickback laws in 2006 to encourage more physicians to transition to EHRs. The subsidies, also called donation programs, can be up to 85 percent of the cost of the EHR's software, training and upgrades. Donations meeting the criteria won't run afoul of the fraud and abuse laws.  

To learn more:
- read CMS' proposed rule (.pdf)