On October 6, the Office of Inspector General (OIG) of the
U.S. Department of Health and Human Services released a
"policy reminder" alert warning that healthcare companies that
prevent patient electronic health records from being shared, known
as "information blocking," will not benefit from the
electronic health record safe harbor to the federal anti-kickback
statute.
The OIG warns that interfering with the transmission of patient
information violates the EHR safe harbor condition that the donor
"does not take any action to limit or restrict the use,
compatibility, or interoperability of the items or services with
other electronic prescribing or electronic health recordsystems
(including, but not limited to, health information technology
applications, products or services)." The alert cites two
examples of possible non-compliant activity: (1) an arrangement in
which a donor precludes or inhibits a competitor from interfacing
with the donated system, and (2) an agreement in which an EHR
technology vendor agrees with a donor to charge higher interface
fees to non-recipient providers or competitors. Other examples of
possible impermissible "information blocking" may include
exclusive data sharing arrangements tied to software or information
technology or required payments for data transmission.
The OIG alert should serve as a prompt for organizations that have
availed themselves of the EHR safe harbor to review their existing
arrangements for any conditions that could be construed as improper
"information blocking."
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