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Arcane regulations stifling health IT, attorney says

Legal expert says that the federal government and Health and Human Services should take into account the challenges and opportunities that new technologies present and how those impact old laws.
By John Andrews
09:31 AM
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arcane regulations health IT

While the sky is the limit for the advancement of information technology in other industries, government regulations have the healthcare industry confined to the basement, said Scott Grubman, Grubman, an attorney with the Atlanta law firm Chilivis Cochran.

The main issue is how the federal government is applying old regulations to new technology, Grubman said.

Regulations such as the Stark Rule and Medicare Anti-Kickback Statue, to cite two examples, are approximately 25 years old. While they may have made sense more than two decades ago, today the rules are inhibiting the potential that exists in the sector, Grubman added.

“The Anti-Kickback Statute’s prohibition against paying or receiving remuneration in exchange for federal healthcare program referrals has been applied to healthcare technology in ways that might not at first be obvious,” Grubman said. “For example, in 2014, the Office of Inspector General issued an advisory opinion in which it stated that athenahealth would potentially be in violation of the Anti-Kickback Statute by charging a $1 transmission fee where a referring provider was out of network, but waiving that fee for in-network providers. The Stark Law can also come into play when a healthcare technology company has physician ownership.”

To rectify the regulatory-technology stalemate, Grubman recommended that the Department of Health and Human Services consider issuing new Anti-Kickback Statute safe harbors and Stark exceptions to take into account both the advantages and challenges of new technology.

“The government must partner with individuals who are familiar with healthcare technology to ensure that the applicable laws and regulations are updated to take into account new and emerging technologies,” he said.

In his HIMSS17 presentation “Round Peg, Square Hole: Old Regulations Meet New Technology,” Grubman plans to illustrate how antiquated regulations are stifling technology's progress and offer advice on what organizations can do to avoid government scrutiny. The seminar is set for Thursday, Feb. 23, at 10:30 a.m. in Room 230A. 

HIMSS17 runs from Feb. 19-23, 2017 at the Orange County Convention Center.


This article is part of our ongoing coverage of HIMSS17. Visit Destination HIMSS17 for previews, reporting live from the show floor and after the conference.


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