Electronic Health Records

EHR donation protections should be permanent, says AHA

EHR donation protections, or “safe harbors”, are vital to continued adoption and should be continued indefinitely, the American Hospital Association (AHA) said this week in an open letter to the Office of the Inspector General (OIG).  The OIG recently proposed an extension of the provisions that allow hospitals to donate EHR systems to independent physicians without violating government anti-kickback statutes, and asked for public comment on the newly suggested sunset date of December 31, 2016.

In 2006, CMS and the OIG created temporary protections from the Stark Law and federal statutes that prohibit providers from receiving products or services free of charge.  To encourage cash-strapped providers to adopt EHRs more quickly, hospitals and vendors are allowed to donate up to 85% of the cost of an unlimited number of EHR components, but recipients must pay for the last 15% of expenses.

“We believe that they will continue for the foreseeable future to be of critical importance to the nation’s efforts to adopt and expand operation of a robust national health IT infrastructure,” states the AHA.  “Hospitals already are – and plan to continue – using the protections to support physician adoption and use of interoperable electronic health records (EHRs) and other forms of health IT to provide community benefit.”  The EHR Incentive Programs will come to an end, the letter argues, but physicians will continue to set up practices long after, and will be in need of financial help to purchase and maintain a certified EHR if the benefits of meaningful use are to extend past the end of the program.

CMS has indicated its willingness to extend the sunset date past 2016, agreeing that the protections fill an important gap in the plan for nationwide EHR use.  Many providers, such as mental health, behavior health, and long term care facilities, are not eligible for Medicare or Medicaid incentives, which will end in 2016 and 2021 respectively.  The proposed extension includes rules to ensure that donated EHR systems meet interoperability requirements to prevent the creation of a closed system between donator and recipient.  Opponents of the safe harbor are concerned that such a “locked-in” loop could lead to preferential referrals, which carry financial benefits.

“The safe harbor is a common-sense policy,” wrote Congressman Jim McDermott (D-WA) in response to the OIG in April.  “It encourages collaboration among providers, yet also contains rigorous requirements that providers must meet in order to protect the Medicare and Medicaid programs from the few unscrupulous providers.  Should you decide to extend this safe harbor provision, we are certain that you will make any necessary adjustments to protect taxpayers from fraud, waste, and abuse based upon your experience with the safe harbor thus far.”

Public comments will continue to be heard until the open discussion period ends on June 10, 2013.

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