OIG may consider extending EHR donation protections

The U.S. Department of Health & Human Services' Office of Inspector General has raised the possibility that it may extend the electronic health record donation "safe harbor" protection enabling hospitals and others to subsidize EHR purchases made by physicians without running afoul of the fraud and abuse laws. The safe harbor is currently slated to "sunset" Dec. 31, 2013.

Vicki Robinson, senior counsel for policy at OIG, speaking at the American Bar Association's Annual Emerging Issues Conference Feb. 22 in Miami, would not divulge whether OIG will allow the safe harbor to terminate as scheduled, or be extended. But she did acknowledge that "we are looking at it" and "we are very aware of [its expiration]."

OIG created this safe harbor 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 an EHR system's software, training and upgrades. The software must meet certain criteria, such as interoperability and electronic prescribing capability.

A number of hospitals, health plans, labs and others currently offer EHR subsidies to affiliated physicians. Loss of this protection could put a crimp into efforts to enlist physicians into joining accountable care organizations and other collaborative clinical programs. Only Washington State has ruled against such subsidy programs as violating state law.

To learn more:
- learn about the ABA Health Law Section's Emerging Issues Conference