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Will Regulators Extend EHR Donation Rule?

March 1, 2013
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Stark exception faces sunset in 2013

As most of Healthcare Informatics’ readership knows, in 2006 the Centers for Medicaid and Medicare Services and the Office of the Inspector General simultaneously established rules creating an exception to the Physician’s Self-Referral Law (“Stark”) and a new safe harbor to the Anti-Kickback Statute in order to boost e-prescribing and adoption of EHRs. What readers may not remember about those rules is that they are set to expire in 2013.

Under the EHR exception, physicians can accept a donation of 85 percent of the donor’s cost of EHR products and services, leaving the recipient physician to pay only 15 percent of such costs.

HIMSS and other industry associations have started reminding regulators that it would be a good idea to postpone or eliminate this sunset to allow more health systems to donate health IT.

It has been pointed out that the 2013 Stark exception sunset does not align with the meaningful use framework, which allows eligible providers and Eligible Hospitals until 2015 to adopt and implement EHR technology before Medicare penalties are levied for non-compliance.

A Feb. 22 letter to CMS from HIMSS “strongly recommends removing the Sunset Provision and making the EHRDonationRules a permanent Exception.  HIMSS requests this exception be implemented as soon as possible to prevent potential disruption of EHR programs at year end.”

Thomas Leary, vice president for government relations for HIMSS, told me that the Stark exception has been a tool that has proven very effective in getting physicians ready for meaningful use. Although he didn’t have specific figures, Leary said many healthcare organizations are leveraging EHR donations. “And our legal task force members are still hearing from clients who wish to do so in the future.”

HIMSS also recommends expanding the rules to cover additional healthcare software and related devices. Fortunately, ending the sunset does not require any action by our currently dysfunctional Congress. CMS and OIG can extend the rules on their own.