On October 6th the Office of Inspector General (OIG) issued a policy reminder regarding information blocking and electronic medical records. Information blocking is the practice of limiting the ability of a party to use electronic health record (EHR) software that has been donated by a third-party provider.
With the passage of the Affordable Care Act (ACA), and the seemingly-inevitable shift from fee-for-service reimbursement models to bundled payment systems, accountable care organizations (ACOs), and other capitated models, electronic health records are increasingly more important, as is the need for patient information to be easily transferred between treating physicians, hospitals, clinics, etc. However, adopting and implementing EHR is extremely expensive for many medical practices and the cost of those systems is often a barrier to their adoption and implementation.
In order to promote the adoption of interoperable EHR for the benefit of patient care, the OIG created an EHR safe harbor, which protects certain arrangements involving the sharing of software, information technology and training services from violating the anti-kickback statute. As the OIG pointed out in its Alert, providers may donate software or information technology to existing or potential referral sources, such as a physician practice, under the safe harbor provision, thereby creating a situation where EHR created by a primary care physician can be shared with a specialty clinic and/or a hospital.
However, providers of EHR technology cannot place limits or blocks on the use of the technology that is provided, without falling outside of the safe harbor provision. The OIG alert points out that “any action taken by a donor (or any person on behalf of the donor, including the [EHR] vendor or the recipient) to limit the use of the donated items or services by charging fees to deter non-recipient providers and suppliers and the donor’s competitors from interfacing with the donated items or services would pose legitimate concerns that parties were improperly locking-in data and referrals and that the arrangement in question would not qualify for safe harbor protection.”
The OIG alert on information blocking serves as a reminder to providers and recipients of EHR technology that the underlying purpose for developing and expanding the use of EHR is to improve patient care through the smooth transfer of medical records. Providers who restrict that exchange of electronic information may find that they are violating the anti-ki8ckback statute and may face significant civil monetary penalties as a result of blocking information.