Anti-kickback exemption extended

December 27, 2013 in Medical Technology

In a year-end set of new regulations, the Centers for Medicare Medicaid Services and the HHS Inspector General finalized the Stark law exemption, which allows hospitals to fund up to 85 percent of EHR costs for physicians, and the OIG outlined the related anti-kickback “safe harbor” for “protected donors.”

The eight-year-old EHR exemption to the physician self-referral and anti-kickback laws have been extended to 2021.

The Stark and anti-kickback laws date back to 1989, when Congress banned self-referrals in Medicare. The prohibition was later extended to Medicaid, and a number of exceptions have been added for legitimate business arrangements.

[See also: OIG to amend safe harbor, anti-kickback.]

In 2006, as part of rules for the 2003 Medicare Modernization Act, CMS first created the exemption for hospitals to help physician practices acquire EHR systems. After originally planning for the exemption to be phased out in 2013, in April 2013 CMS and OIG proposed sunsetting the policy in 2016.

The American Hospital Association, HIMSS and others encouraged the agencies to make the EHR exceptions permanent.

“HIMSS is pleased that the Centers for Medicare and Medicaid Services and the HHS Office of the Inspector General have promulgated extensions to the Stark exemptions and anti-kickback safe harbors for electronic health records through 2021,” said Thomas A. Leary, HIMSS vice president, government releations, said in a statement. “We also appreciate the government’s decision to use a deeming process for certification “to ensure coordination between this program and the existing ONC Certification Program.”

“To ensure the continued advancement of meaningful use of certified EHR technology and allow for better care coordination and information sharing among clinical providers, treatment facilities and patients, HIMSS has historically supported making permanent and expanding the Stark exemptions and anti-kickback safe harbors beyond software and services used predominantly for EHRs,” Leary added. “They should include software and services used for care coordination, quality of measurement, improving population health, or improving the quality or efficiency of health care delivery among parties. Although we encourage the elimination of the sunset provision, we appreciate the extension of the program to 2021 to provide certainty to stakeholders.”

[See also: EHR incentives, Stark and SGR alternatives getting Congressional.]

Although it was “implemented to encourage the adoption of health information technology, it is now a necessity for the creation of new healthcare delivery and payment models,” CMS officials said in summing up the comments in support of the extension. The new sunset of 2021 coincides with the end of the Medicaid EHR incentive program.

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