A federal watchdog group sent out an alert this week about information blocking and potential violations of the anti-kickback law (PDF). Some experts say the Office of Inspector General alert hints at the agency's growing concern about the issue.
The document reminds providers that, normally, they may donate information technology or software to potential referral sources, such as a physician practice, under a safe harbor provision of the anti-kickback statute. But if the donor uses those donated items to limit the use, compatibility or interoperability of other electronic health-record systems, then the safe harbor no longer applies.
Paula Sanders, chairwoman of the healthcare practice group at Post & Schell, said the alert hints that the agency is trying to combat data-blocking.
She noted that a recent OIG alert about doctor compensation arrangements and the anti-kickback law followed a dozen settlements involving physician contracts.
HHS Inspector General Daniel Levinson wrote that his office issued the alert because of National Health IT Week taking place now.
“Health IT has become a critical part of the health care system and offers opportunities to improve patient care, make practice management more efficient and improve public health,” Levinson wrote. “We must be vigilant in ensuring that health IT is used to achieve these benefits, and not as a tool to facilitate health care fraud.”
Lisa Clark, a partner at Duane Morris who represents hospitals, said the safe harbor provision could certainly be abused by some providers, but she also could imagine situations where hospitals or other providers might inadvertently fail to follow the rules.
For example, the OIG reminder said that if an EHR vendor agrees with a provider to charge high interface fees to other providers or suppliers, such an action could potentially violate the anti-kickback law. But Clark said fees might be necessary if a vendor or hospital has to take extra steps to set up a system that is truly interoperable.
“If the system they're providing just can't do something, or it would cost them a lot to [make it] do something, then I think there could be a business reason,” Clark said, noting that under the anti-kickback law there has to be a specific intent to induce referrals.
The alert could also likely be an attempt to clarify some of the rules, such as what constitutes data-blocking, said Julia Adler-Milstein, an assistant professor at the University of Michigan School of Information who focuses on health IT and policy.
She added, however, that the alert certainly doesn't resolve all questions about such situations.
It's unclear whether the OIG has actually pursued any cases involving the situation described in the alert. Adler-Milstein said she's heard about such situations anecdotally, but there's a lack of good data about them.
Paul Levy, former Beth Israel Deaconess Medical Center CEO, recently wrote a blog post accusing EHR vendor Epic Systems Corp. and Partners HealthCare of working together to block competition. He alleged that Partners and Epic told Partners-affiliated independent medical groups that they had to install the Epic EHR to achieve interoperability or they wouldn't get Partners' favorable insurance contracting rates.
Partners and Epic wouldn't comment on the allegations, but some experts said the case spoke to larger problems with interoperability.
Epic and a number of other EHR vendors recently dropped fees they charged customers to share data. They made the changes after HHS' Office of the National Coordinator for Health IT criticized providers and health IT vendors for business practices that made transferring EHRs difficult.
