Right now, it’s legal for hospitals to give doctors EMRs under certain circumstances, despite the existence of the Stark law banning payments intended to induce referrals. Specifically, hospitals won’t face anti-kickback enforcement if doctors pay 15 percent of the cost of EMRs donated by hospitals.
But the Stark law exception established by CMS, plus a “safe harbor” rule established by the HHS Office of the Inspector General, are both due to expire at the end of 2013. This will take place despite the fact that Medicare incentives for EMR adoption will continue through 2016, notes iHealthBeat.
Hoping to address this state of affairs, the Federation of American Hospitals has made the renewal of EMR exceptions to the Stark law its top recommendation in a proposed list of safe harbors, reports Modern Healthcare. More recently, Rep. Jim McDermott (D-Wash.) wrote a letter to the chief counsel to HHS’ OIG to extend those exceptions soon.
Extending these safe harbor provisions at least through the life of the Meaningful Use program seems necessary and wise. After all, it’s hard enough to get smaller practices up on EMRs even with the promise of incentives. Letting hospitals pay for most of the cost of the system would meet the public policy objectives which prompted the creation of HITECH in the first place.
According to Modern Healthcare, the federal Office of Management and Budget is reviewing proposed rules regarding the Stark exception and the anti-kickback safe harbor. Let’s hope they’re finalized in time to solve the problem.