Joseph Rugg's Health Law Blog

Electronic Health Record Donation Safe Harbor

March 28, 2013

Dear Mr. Demske:

I write today to urge the Office of the Inspector General of the United States Department of Health and Human Services to renew its safe harbor provision that protects certain electronic health record donation arrangements under the federal Anti-Kickback Statute.  As you know, this provision is set to expire on December 31, 2013.  I write to respectfully ask that you consider extending this safe harbor provision. As you know, Congress is particularly interested in developing and continuing initiatives that are designed to reduce health care costs.  As Ranking Member of the Ways and Means Health Subcommittee, eliminating wasteful spending in health care is an issue that is very important to me.  Care coordination certainly represents good medical practice and can decrease health care costs by: (a) eliminating the need for duplicative and unnecessary testing, and (b) reducing the potential for medical errors that can occur when clinicians simply do not have all of the medical record history needed to appropriately care for a patient. The safe harbor that your agency has established, which protects the donation of electronic health records under certain limited circumstances, is a common-sense policy.  It encourages collaboration among providers, yet also contains rigorous requirements that providers must meet in order to protect the Medicare and Medicaid programs from the few unscrupulous providers who would donate electronic health record software in exchange for referrals. Should you decide to extend this safe harbor provision, we are certain that you will make any necessary adjustments to protect taxpayers from fraud, waste, and abuse based upon your experience with the safe harbor thus far.  Furthermore, I recommend that any extension that you publish should continue to have a corresponding sunset date so that you can address newly emerging fraud schemes that might negatively impact the federally-funded programs. I respectfully ask that you extend this important safe harbor provision as soon as is practicable so that providers have the certainty that they need to continue engaging in efforts designed to promote care coordination.  I appreciate your dedication to this important issue and look forward to continuing to work with you in the future. Thank you in advance for your attention to this important matter.

Regards,

Hon. Jim McDermott, Member of Congress

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