BNA’s Health Care Fraud Report™ is the go-to source for health care fraud reporting, with in-depth information on government and private enforcement actions and strategies designed to...
By James Swann
Oct. 7 — The HHS inspector general warned Oct. 6 it would investigate electronic health record donations from hospitals to doctors that restrict the sharing of patient data.
Existing anti-kickback statute safe harbors protect arrangements in which hospitals donate EHRs to doctors as long as the donated technology doesn’t limit or restrict interoperability with other health IT systems, Health and Human Services IG Daniel R. Levinson said in a blog post about the alert it issued on the topic.
According to the alert, if hospitals or other organizations that donate EHRs or other health IT systems to physicians act to limit the interoperability of those products it could signal that the anti-kickback statute harbor conditions that protect those donations haven't been met.
Levinson said his agency is “committed to investigating potentially abusive donation arrangements that purport to meet the safe harbor conditions, but, in fact, do not.”
Kirk Nahra, an attorney with Wiley & Rein in Washington, told Bloomberg BNA that data-limiting arrangements represent more than just a fraud issue.
Nahra said EHR companies are being accused of developing technology that makes it difficult to switch to another provider, and in a fraud setting, this would tie doctors to the hospital that originally donated the technology.
Outside of a fraud context, hospitals should be reviewing these arrangements to make sure they’re not forever linked to a single EHR vendor, even if that vendor relationship isn’t successful.
“These programs are having a real, and negative, impact on certain data sharing and patient access goals, which is making the incentive for government action even stronger,” Nahra said.
The OIG alert provided several examples of problematic EHR donation arrangements, including one in which an EHR vendor reaches an agreement with the donor to charge high connection fees for competitors or providers and suppliers beyond the EHR recipient.
Such an arrangement would end up “improperly locking-in data,” the OIG said, and would not meet the conditions of the safe harbor.
Additionally, an arrangement in which the donor and recipient agreed to block or impede a competitor’s access to the technology would also lead to an investigation, the OIG said.
Beyond problematic arrangements, the OIG said safe harbor protections for EHR donation arrangements only apply in certain situations.
For example, laboratories donating EHR technology can no longer qualify for safe harbor protections, according to the alert.
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