OIG Reminds Providers that the Donation of EHR Systems with Limited Interoperability May Violate the Federal Anti-Kickback Statute

Titled “OIG Policy Reminder: Information Blocking and the Federal Anti-Kickback Statute,” the OIG Alert was issued in connection with HHS’ efforts to highlight National Health IT Week 2015 and provides a reminder that the EHR safe harbor only protects an arrangement if all of the safe harbor’s conditions are met.

While the OIG Alert primarily restates existing guidance from the OIG about the EHR safe harbor, the importance of this guidance is not lessened simply because it has been shared before. Notably, the OIG notes its ongoing commitment to investigate potentially abusive arrangements that falsely claim to meet the conditions of the EHR safe harbor, and the OIG also provides a reminder that actions taken to limit the interoperability of donated items or services potentially can provide evidence of intent to violate the federal anti-kickback statute. Providers, such as hospitals, that have donated or are considering donating EHRs to referral sources and the referral sources, such as physician practices, that have been or may be the recipient of EHRs should make sure to review these arrangements to ensure full compliance with applicable law.

Arent Fox’s Fraud and Abuse team regularly monitors ant-kickback statute developments, including the release of guidance and commentary from government officials, for valuable insights into government enforcement priorities and advises clients on related matters.