A Reminder from the HHS Office of the Inspector General about Information Blocking and the Federal Anti-Kickback Statute

Daniel Levinson | October 6, 2015

This week, the Department marks “National Health IT Week” 2015.  In connection with the Department’s efforts, my office has issued a new OIG Alert entitled “OIG Policy Reminder:  Information Blocking and the Federal Anti-Kickback Statute”.

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.  We also know that 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. These dual considerations are especially important as the health care system transitions to new models of coordinated care.

OIG has long supported the Department’s goal of promoting the adoption of electronic health record (EHR) technology.  To this end, our office created and then extended a safe harbor to the Federal anti-kickback statute for certain arrangements involving donations of EHR items and services to potential referral sources (the EHR safe harbor).  Donations that fit squarely within all of the EHR safe harbor’s conditions are not subject to sanctions under the Federal anti-kickback statute.

Information blocking impedes the appropriate flow of information across the care continuum and can undermine the benefits offered by health IT.  One of the conditions of the EHR safe harbor is relevant to issue of information blocking, and my office is taking the opportunity presented by National Health IT Week to remind stakeholders that information blocking may prevent them from using the EHR safe harbor.

As described in more detail in the new OIG Alert, if a donor, or someone on the donor’s behalf, takes any action to limit or restrict the use, compatibility, or interoperability of the donated items or services with other electronic prescribing or EHR systems, the donation arrangement would not receive safe harbor protection and would be suspect under the Federal anti-kickback statute.  The new OIG Alert includes examples of this type of concerning conduct.

We continue to support the goal of promoting adoption of EHR technology and recognize the potential benefits offered by health IT.  At the same time, we remain committed to investigating potentially abusive donation arrangements that purport to meet the safe harbor conditions, but, in fact, do not.  Such arrangements can undermine the benefits of health IT and present risks for the Department’s programs and beneficiaries.  We encourage anyone with information about an arrangement that may violate the Federal anti-kickback statute, including an EHR donation arrangement involving information blocking, to report it to our hotline by calling 1–800–HHS–TIPS or by visiting https://forms.oig.hhs.gov/hotlineoperations/.

* Daniel R. Levinson heads the Office of Inspector General of the U.S. Department of Health and Human Services (OIG).  OIG’s mission is to protect the integrity of the Department’s programs as well as the health and welfare of program beneficiaries.  More information about OIG and its work is available at http://oig.hhs.gov/.