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Patricia O'Connell
Senior Communications Manager

Kirk Nahra Discusses Alert on Information Blocking From HHS Office of Inspector General
October 12, 2015

Kirk J. Nahra, chair of Wiley Rein’s Privacy Practice and co-chair of the Health Care Practice, was quoted by in an October 9 article about a federal policy reminder that a practice known as information blocking may violate the federal anti-kickback law.

The article cited an October 6 alert from the U.S. Department of Health and Human Services’ Office of the Inspector General (OIG) that donations—such as from a hospital to a physician—of electronic health record (EHR) software are potential violations of anti-kickback rules if the software has limited or restricted interoperability. The OIG issued the policy reminder as part of a government campaign to discourage information blocking, in which an entity interferes with the exchange of electronic health information.

The anti-kickback regulations were meant to prohibit situations “such as a hospital giving a doctor a new car or another expensive item,” including technology, in exchange for the physician referring patients who are covered under government health programs, such as Medicare or Medicaid, to the hospital, Mr. Nahra said.

Exceptions to the federal anti-kickback statute, known as safe harbors, include certain arrangements involving the donation of interoperable EHR software. The safe harbor does not apply to software that fails to meet the interoperability condition, according to the OIG alert.

Aside from potential cases involving intentional information blocking that would be in violation of the federal anti-kickback laws, some hospitals may unwittingly be violating the safe harbor condition, Mr. Nahra said. That includes situations where “hospitals are donating to physician offices cheap EHR systems” that aren’t designed to share data with other vendors’ EHR systems, he said.

“Hospitals can be victims of this too,” Mr. Nahra said. “Hospitals need to figure out if the EHRs they’re giving away are interoperable. They should question their vendors.”

To read the article, click here.