OIG and CMS Revise Rules on Donations of EHR Technology

The Centers for Medicare and Medicaid Services (CMS) and U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) have published final rules to renew and revise the 2006 EHR exception and safe harbor from self-referral/anti-kickback requirements. The EHR exception and safe harbor rules were scheduled to end in 2013, but the new rules extend the provision until 2021. This will allow hospitals and other providers to continue donating certain types of health IT to their referring physicians provided conditions are met that prevent the donations from being used as illegal rewards or “kickbacks” for referrals. Through requests for comments, the ACR was involved in formulating the extension to the exemption and got language inserted to address a concern that some EHR donations were used to “lock-in” referring physicians to only certain providers of imaging services. The updated regulation prevents organizations that donate EHR technology and their vendors from charging high interface fees to link the donated health IT systems with competitors systems. Going forward, the OIG and CMS will now consider any agreements or actions that limit the ability of donated technology to connect with competitors as evidence of abuse of the EHR exception and safe harbor. The ACR noted on its website that it plans to come out with information on how radiologists and imaging providers can spot and report practices that leverage EHR technology donations to reduce competition for referrals.