The Internal Revenue Service has supplemented its May 11, two-page "field directive" on safe harbors for hospitals planning to provide subsidized clinical information technology systems and services to physicians with a single-page, question-and-answer document.
In August 2006, HHS and the CMS issued a pair of guidance documents outlining exceptions and safe harbors to federal Stark and anti-kickback laws that had previously hindered hospital subsidies for physician electronic medical-record systems. Many not-for-profit hospitals, however, were still reticent to provide the subsidies under advice from their attorneys, who pointed out that such gifts to for-profit organizations might jeopardize their tax-exempt status.
One of the issues addressed by the new Q&A was a concern raised by privacy advocates about the May 11 document, which said: "The health IT subsidy arrangements provide that, to the extent permitted by law, the hospital may access all of the electronic medical records created by a physician using the health IT items and services subsidized by the hospital."
The new IRS Q&A posits the question: "What type of restrictions, if any, may a medical staff physician impose on the hospital's access to electronic medical records created by the physician using the health IT items and services subsidized by the hospital?" The IRS answers: "A physician may deny a hospital access to such records if that access would violate federal and state privacy laws or the physician's contractual obligations to patients. Also, the hospital and physician may agree on reasonable conditions to the hospital's access. For example, their agreement could allow the hospital to access a patient's medical records only when that patient becomes a patient of the hospital, and could deny the hospital access to nonmedical information such as billing, insurance eligibility and referral information."