by Ann F. Triebsch

The anti-kickback “safe harbor” allowing hospitals to donate electronic health record (“EHR”) equipment to physicians who may refer patients to their facility is set to expire on December 31, 2013, but efforts have begun to have the safe harbor extended. The safe harbor, created in 2006, allows hospitals to donate EHR and electronic prescribing technology to practices for the purpose of setting up or improving EHR systems, provided that the practice covers 15% of the cost of the EHR technology, without risk of anti-kickback enforcement. The purpose was to incentivize the meaningful use of EHR systems, and Medicare incentive payments for EHR adoption will continue through 2016.

Rep. Jim McDermott (D-Wash.) sent a letter on March 28 to Greg Demske, chief counsel of the HHS Office of Inspector General, asking OIG to extend the safe harbor provision. He emphasized Washington’s goal of reducing healthcare costs and eliminating wasteful spending, and pointed out that an extension would further that goal. He called the safe harbor provision “a common-sense policy” that “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 who would donate electronic health record software in exchange for referrals.” Earlier this year, the Federation of American Hospitals also showed support for renewing the EHR safe harbor.

To read Rep. McDermott’s letter, click here.

To read the Federation of American Hospitals letter, click here.

Stay tuned for further action on an extension.