Legislators: Expand EHR anti-kickback safe harbors

In a recent letter to Centers for Medicare & Medicaid Services Administrator Marilyn Tavenner and National Coordinator for Health IT Farzad Mostashari, House legislators call for the expansion of the physician self-referral law exception and anti-kickback statute safe harbor for electronic health records.

Reps. Diane Black (R-Tenn, right) and Mike Honda (D-Calif.) say that expanding the current legislation exception to "prohibit actions that limit or restrict" use of donated technology in conjunction with other health IT tools would give a boost to interoperability efforts.

"One of the artificial obstacles to achieving interoperability is a practice known as 'information blocking,' where healthcare providers or electronic health record vendors have contracts that block information exchange between electronic health record systems," they say.

"Information blocking occurs not because different technologies or standards prevent data transfer between electronic health records, but because some electronic health record vendors or healthcare providers engage in this activity as a business practice. If we are to better accomplish the aims of better, more efficient care while exercising responsible stewardship of taxpayer dollars, we hope you agree that these business practices should be eliminated in health programs subsidized by taxpayers."

Black and Honda (left) say that the U.S. Department of Health & Human Services should establish a new condition under the exception that "clarifies the prohibition against data 'lock-in.'"

In April, CMS filed a proposed rule in the Federal Register tweaking the current regulations and extending the date that the Stark Law's protections would sunset. Currently, they are slated to end Dec. 31 of this year; the proposal calls for an extension to the end of 2016.

OIG created the safe harbor provisions 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. The software must meet certain criteria, such as interoperability and electronic prescribing capability. Donations meeting the safe harbor won't run afoul of the fraud and abuse laws.

To learn more:
- read the letter (.pdf)