Hospitals say anti-fraud exemptions too narrow to spur IT use

Proposed Medicare rules designed to remove legal barriers to the donation of e-prescribing and electronic health records don't go far enough, according to some hospital leaders and healthcare providers.

Under the proposed rules, hospitals and certain healthcare organizations could share information technology tools related to e-prescribing and EHRs with doctors who work outside the hospital. The Centers for Medicare and Medicaid Services has proposed exceptions to the "physician self-referral," or Stark Amendment, which prevents physicians who participate in Medicare from referring Medicare patients to hospitals or other healthcare providers with which the physician has a financial relationship. In addition, HHS' Office of Inspector General has proposed safe harbors from a federal anti-kickback statute that would allow for donations of e-prescribing and EHR technology.

But some groups that represent hospitals and other healthcare providers say the proposed rules would continue to keep hospitals from sharing IT with physicians for fear of running afoul of the law.

"There is a little bit of concern with whether the proposed regulations would give hospitals the room they need," said Chantal Worzala, senior associate director of policy for the American Hospital Association.

Some hospitals say the technology exemption is too narrow and would like to provide an interface between the hospitals' EHR system and the physician's office. The exception as written would not allow for that. Other hospitals say they need greater flexibility to provide doctors with the ability to connect to IT systems, Worzala said.

There's also a question about whether multifunctional devices that could be used for several applications, including e-prescribing, would be covered under the new rules, said Robert Belfort, a partner with Manatt, Phelps & Phillips law firm. Hospitals also must prove that the donation of an IT tool to a physician is necessary.

"That may create a lot of uncertainty," said Belfort, who co-chairs the law firm's health industry practice group.

In addition, CMS has proposed Stark exceptions for EHRs, but the OIG has included only an e-prescribing safe harbor in its proposed rule, Belfort said.

The Medical Group Management Association would like to see CMS make an exemption for hospitals to share technology with an entire practice, not just with individual physicians as the proposed rule is currently written. Nurses and other clinicians in a practice should be able to receive technology from hospitals and other healthcare organizations, said Robert Tennant, a senior policy advisor for Health Informatics at the Medical Group Management Association.

Even if the rules are expanded, Tennant said the removal of legal barriers to IT donations is a small part of getting physicians to adopt technology.

"There are some of us that aren't convinced that this is going to lead to a groundswell in small practice adoption of IT," he said.

Comments to the proposed rules are due to CMS by Dec. 12.

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