On October 6, 2015, the Office of Inspector General (OIG) of the Department of Health and Human Services issued OIG Policy Reminder: Information Blocking and the Federal Anti-Kickback Statute, which “reminds” providers that if electronic health records (EHR) are being used for information blocking, the donation of the EHR may not fall within the EHR safe harbor.

In order to fit within the EHR safe harbor, “[t]he donor (or any person on the donor’s behalf) does not take any action to limit or restrict the use, compatibility, or interoperability of the items or services with other electronic prescribing or [EHR] systems (including, but not limited to, health information technology applications, products, or services).” The OIG noted that it has stated that such “donations would be suspect under the law as they would appear to be motivated, at least in part, by a purpose of securing… business.” The OIG example is that if a provider/donor enters into an agreement with a technology vendor for the vendor to “charge high interface fees to non-recipient providers or suppliers or to competitors” may not fall within the safe harbor. According to the OIG, this “would pose legitimate concerns that parties were improperly locking-in data and referrals and that the arrangement in question would not qualify for safe harbor protection.”

Blunt message from the OIG: follow the EHR safe harbor closely, and beware if you are using EHR donated technology to block information from competitors.

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