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EHR Donation Safe Harbor Extended to 2021

December 30, 2013
by Gabriel Perna
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Also change provisions around interoperability

The Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health & Human Services Office of Inspector General (HHS OIG) have extended the regulation that allows hospitals to donate electronic health records (EHRs) to physicians to Dec. 31, 2021.

Earlier in 2013, CMS and OIG proposed a rule that would extend the safe harbor regulation to 2016. The safe harbor regulation is an exception to a federal law that prohibits payments of particular services from a hospital to a physician that are meant to encourage a referral back to the hospital.

However, after that proposal, many healthcare IT advocacy groups, such as the American Hospital Association (AHA), the Healthcare Information Management and Systems Society (HIMSS), had encouraged CMS and OIG to remove the sunset date permanently. The government compromised with a five-year extension to the 2016 proposal date. The original sunset date, as part of a 2006 provision to Stark and anti-kickback laws, was Dec. 31, 2013.

HIMSS' Vice President of Government Relations, Thomas A. Leary, said the organization is plesed the government agencies have promulgated extensions to the Stark exemptions and anti-kickback safe harbors for electronic health records through 2021.

"Although we encourage the elimination of the sunset provision, we appreciate the extension of the program to 2021 to provide certainty to stakeholders," Leary said.

In the document which announces the sunset provision, CMS and OIG also update the EHR interoperable provision. The donated EHR software must be interoperable, and with this latest provision, the government has changed the way EHR systems are deemed interoperable.

Currently, to meet the deeming provision, the safe harbor requires software to be certified within no more than 12 months prior to the date of donation. With the provision, CMS and OIG have gotten rid of that requirement, saying EHR software would be eligible for interoperable “deeming” if, on the date it is provided to the recipient, it has been certified to any edition of the electronic health record certification criteria that is identified in the then-applicable definition of certified EHR technology.

As an example, CMS and OIG say for 2013, the applicable definition of Certified EHR Technology includes both the 2011 and the 2014 editions of the electronic health record certification criteria. Thus, in 2013, software certified to meet either the 2011 edition or the 2014 edition could satisfy the safe harbor provision as we proposed.

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