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The Advocate
Third quarter 2007
Physicians and Hospitals Should be Alert to the Issues Related to Participation in Electronic Medical Record Systems
In August, 2006, CMS published rules creating an exception under
Stark allowing certain arrangements between physicians and hospitals
(and other DHS facilities) for the provision of electronic health
records (EHR). The Office of the Inspector General adopted similar
rules creating a safe harbor under the Anti-kickback statute.
Since the adoption of the rules, New England physicians have begun to see opportunities for participation in programs to receive electronic medical records programs from facilities. Before entering into these programs, physicians and hospitals should be aware of the rules that govern them and carefully evaluate the proposals to ensure compliance. Both the Stark exception and the Anti-kickback safe harbor require, among other things, the following elements:
- Hospitals may offer physicians non-monetary remuneration, including software, information technology and training services. Please note that the rules do not allow for the provision of hardware including hardware used to connect to the EHR system.
- The software must be certified as interoperable within 12 months prior to the date it is provided to the physician, and the hospital can take no action to restrict the use, compatibility or interoperability with other EHR systems. We recommend a copy of the certificate of interoperability be attached as an exhibit to the contract.
- Before receiving the items or services, the physician must pay 15% of the hospital’s cost. The hospital may not loan these funds to the physician.
- Receipt of the EHR cannot be a condition of doing business with the hospital.
- The physician’s eligibility to receive the EHR items or services cannot be determined in a manner that takes into account the volume or value of services between the parties.
- There must be a written agreement between the parties setting forth the hospital’s costs and the amount of the physician’s contribution. The written agreement must cover all of the EHR items and services to be provided.
- The hospital must not have knowledge of the fact that the physician possesses items or services equivalent to those being provided through the agreement. The contract may require a representation by the physician that he or she does not already have equivalent items or services.
- The hospital cannot take action to limit the physician’s ability to use the EHR items or services for any of his or her patients.
- The hospital cannot provide staffing in the physician’s office as part of the EHR services.
- The EHR items or services cannot be primarily intended to conduct the physician’s personal business or business unrelated to the medical practice.
- The EHR software must contain electronic prescribing capability.
In addition, physicians and hospitals should also carefully assess
the operational aspects of the system particularly the issues related
to privacy to ensure the requirements of HIPAA are met. For
many physician practices, this will require a revision to the Privacy
Notice. Both parties should also be fully apprised of the mechanisms
for transitioning out of the EHR to another system upon
termination to be certain there will be continuous access to patient
records during the transition period and after termination.
Cinde Warmington, a partner in Sulloway & Hollis, PLLC’s Health Care section, represents providers in a wide range of business and regulatory matters.