In an alert published October 6, 2015, the OIG reminded the public that “information blocking”—generally described as individuals or entities knowingly and unreasonably interfering with the exchange or use of electronic health information—may affect safe harbor protection under the Federal anti-kickback statute.  In the alert, the OIG discussed situations in which a hospital provides software or information technology to an existing or potential referral source, such as a physician practice.  The OIG warned that such an arrangement “potentially implicates the Federal anti-kickback statute because the software or information technology is potential remuneration to the referral source.”

While the electronic health records (EHR) safe harbor provides protections for certain arrangements in which interoperable EHR software or information technology and training services are provided to a potential or existing referral source, the OIG reminded the public that to fall within the exception, any sort of EHR arrangement must comply with all safe harbor conditions—including one directly relevant to information blocking.  That safe harbor condition generally requires that the technology donor not restrict interoperability of the provided items or services with other EHR systems.  As illustrations of situations that would be suspect and may not qualify for safe harbor protection, the OIG provided a few examples, such as arrangements in which donors work with EHR technology vendors that agree to charge high interface fees to non-recipient providers or suppliers or to competitors. The OIG’s alert may be found here, and additional information on information blocking may be found here. 

Reporter, Christina A. Gonzalez, Houston, +1 713 276 7340, cagonzalez@kslaw.com.