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OIG extends sunset date for EHR safe harbor, Stark Law exception

Hospitals will be able to continue to give EHRs to providers under an extension to the anti-kickback safe harbor announced just before the exception was set to expire.

The HHS Office of the Inspector General (OIG) announced the extension to the sunset date for EHR safe harbor regulations and a Stark law exception, which were due to end this year. The regulations define “certain conduct that is protected from liability under the Federal anti-kickback statute” of the Social Security Act. HHS also amended its recommendation for the EHR safe harbor to continue through 2021 from its previous suggestion of Dec. 31, 2016.

The Stark law was created to prevent providers from receiving kickbacks from other providers to whom they’ve donated. The law is restrictive and complicates nearly every well-meaning provider business deal. That complexity is something the OIG hopes to assuage by extending the exception. Had the exception expired, costs for EHR systems would have increased and greatly reduced the number of physicians able to purchase EHR technology.

The OIG’s amendments to the safe harbor included updating the provision under which EHR systems are determined to be interoperable, among other changes. The current safe harbor states that EHRs are interoperable if they have been approved by a certifying body within 12 months of the time it was given to a physician. The updated rule clarifies that EHR software is interoperable if it was certified by an ONC-authorized organization on the date it was provided to a physician.

The OIG’s final rule is a follow up to a proposal made in April. That proposal aimed to continue an exception to the Stark law which allows hospitals to donate to individual physicians and small private practices. This extension will give hospitals more time to perfect their EHR rollouts and establish a program for donating EHR products to physicians and smaller providers.

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