OIG issues information blocking alert around anti-kickback statute

Safe harbor has conditions
By Erin McCann
10:53 AM
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In case you forgot, allow a new OIG alert to remind you: Healthcare providers and EHR vendors who engage in information blocking might get in serious trouble with federal anti-kickback laws.

This week, HHS Office of Inspector General released a policy reminder for industry stakeholders that information blocking can violate anti-kickback statute and in some cases does not fall in the realm of safe harbor conditions.

For hospitals or healthcare providers who furnish electronic health record software to a physician practice that may act as a potential or current referral source, for instance, this may violate the statute.

elated: Happy with your EHR or not? View our 2015 satisfaction survey results.]

"Arrangements involving the provision of software or information technology to a referral source should be scrutinized for compliance with the federal antikickback statute," OIG officials wrote in the notice. They noted, however, a safe harbor exists that applies to specific situations involving the provisioning of interoperable EHR platforms.

The purpose of the safe harbor is "to protect beneficial arrangements that would eliminate perceived barriers to the adoption of EHR without creating undue risk that the arrangements might be used to induce or reward the generation of business," OIG officials pointed out. "An arrangement must fit squarely in all safe harbor conditions to be protected."

One of those conditions is that a provider does not limit or restrict the use or interoperability of the EHR platform or services with other health IT systems.

This also pertains to situations when EHR vendors agree with providers or donors to require higher interface fees to non-recipient providers, competitors or suppliers. 

[See also: Healthcare IT News readers rank their 9 favorite EHRs.]

And another reminder? The safe harbor no longer applies to laboratories.

The subject of information blocking has become a focus of federal officials in recent months, with the Office of the National Coordinator saying it is "increasingly concerned about these practices."

In fact, ONC even highlighted this issue in a report to Congress earlier this year, writing that information blocking is poised to become even "more pronounced" down the road.

ONC officials pointed to the 60 unsolicited reports of potential information blocking reported last year.

"Most complaints of information blocking are directed at health IT developers," ONC told Congress in the report. "Many of these complaints allege that developers charge fees that make it cost-prohibitive for most customers to send, receive or export electronic health information stored in EHRs, or to establish interfaces that enable such information to be exchanged with other providers, persons or entities."

Shortly after ONC's report to Congress, Verona, Wisconsin-based Epic announced it would be dropping data exchange fees until at least 2020.