The IRS has come out with questions and answers to supplement the IRS guidance on EHR Hospitals’ Health IT Subsidy Arrangements with Medical Staff Physicians (as described in May 11, 2007 Field Memorandum on the IRS website):
Q1 — What if a hospital’s Health IT Subsidy Arrangements with its medical staff physicians
aren’t entirely consistent with the conditions in the Memorandum? Would those arrangements result in impermissible private benefit or inurement?
A1 — Such arrangements will not be covered by the “safe harbor” described in the
Memorandum. However, they will not necessarily generate impermissible private benefit or
inurement, because the Memorandum is not meant to set forth the only permissible Health IT
Subsidy Arrangement between hospitals and physicians. Rather, the facts and circumstances
of any arrangement that does not meet the conditions described in the Memorandum will need
to be reviewed to determine if it results in any impermissible private benefit or inurement.
Q2 — What is meant in the Memorandum by “financial assistance” and “subsidies” to medical
staff physicians to acquire and implement electronic health records (“EHR”)-related software
and services that would enable the physicians to connect to the hospitals’ EHR systems?
A2 – Consistent with the HHS regulations referenced in the Memorandum, “financial assistance”
and “subsidy” do not include cash payments from the Hospital to the physicians. Rather, they
refer to arrangements in which the hospital provides the physician with EHR-related software or
information technology and training services, and the physician contributes a portion of the
Q3 – What if the hospital provides a Health IT Subsidy to a “disqualified person” as defined in
A3 – Assuming that the hospital meets all the conditions described in the Memorandum, the
agent will not treat such Health IT Subsidy Arrangement as an excess benefit transaction.
Q4 — What if the agent finds inurement to a medical staff physician outside the context of the
Health IT Subsidy Arrangement?
A4 — If the agent finds that the hospital’s net earnings have inured to the benefit of one or
more medical staff physicians outside the context of such arrangement, then the hospital would
not be covered by the safe harbor set forth in the memorandum. Although the safe harbor
would not apply in this situation, a determination of whether the Health IT Subsidy Arrangement
results in impermissible private benefit or inurement will depend on all the facts and
Q5 — What type of restrictions, if any, may a medical staff physician impose on the hospital’s
access to electronic medical records created by the physician using the Health IT Items and
Services subsidized by the hospital?
A5 – A physician may deny a hospital access to such records if that access would violate
federal and state privacy laws or the physician’s contractual obligations to patients. Also, the
hospital and physician may agree on reasonable conditions to the hospital’s access. For
example, their agreement could allow the hospital to access a patient’s medical records only
when that patient becomes a patient of the hospital, and could deny the hospital access to nonmedical
information such as billing, insurance eligibility, and referral information.
Q6 — Does the hospital have to ensure that the Health IT Items and Services are available to all
of its medical staff physicians at the same time?
A6 –The hospital may provide access to various groups of physicians at different times
according to criteria related to meeting the health care needs of the community. The hospital
should establish a plan for providing such access.subsidies.