OIG issues policy reminder on EHR 'information blocking' and the anti-kickback statute

The Department of Health and Human Services Office of the Inspector General yesterday issued as part of National Health IT Week a policy reminder that the electronic health records safe harbor does not protect donations of health information technology items or services that have limited or restricted interoperability. The safe harbor protects certain arrangements in which hospitals and health systems donate interoperable EHR software or information technology and training services to community physicians or physician practices. However, the safe harbor does not offer protection where the donor hospital – or any person acting on the donor’s behalf, including the recipient – takes any action that interferes with or restricts the donated product’s use, compatibility or ability to communicate with products from other vendors. Impeding the appropriate flow of information across the care continuum through information blocking practices “undermine[s] the benefits offered by health IT,” said HHS Inspector General Daniel Levinson. According to the policy reminder, donations of items or services that have limited or restricted interoperability “would be suspect under the law as they would appear to be motivated, at least in part, by a purpose of securing federal health care program business.” The OIG reminder includes examples of the prohibited information blocking conduct.