OIG Advisory Opinion Provides Guidance on Electronic Health Record Connectivity Arrangements

On December 19, 2012, The Office of Inspector General (“OIG”) published an advisory opinion (“OIG AO 12-20“) wherein the agency concluded it will not impose sanctions under the Anti-kickback Statute (“AKS”) on a Hospital (“Hospital”) for its proposal to provide a free electronic interface (“the Interface”) to community physicians and physician practices to allow electronic transmission of orders and results for laboratory and diagnostic services. The OIG found that the free access to the Interface did not constitute remuneration and therefore the Interface did not violate the AKS.

Under the proposal the Hospital would:

1) Provide the Interface free of charge to any physician that requested it;
2) Provide support services, through a contractor, to maintain and update the Interface; and 3) Limit the physician’s use of the Interface to transmitting orders for and receiving results from certain laboratory diagnostic services provided by the Hospital.

Physicians and practices participating in the arrangement would remain responsible for all aspects of acquiring and maintaining their own EHR system, including any installation and maintenance costs.

As a threshold question, the OIG considered whether the Interface constituted remuneration. Because the Interface was limited to transmitting orders and receiving results for laboratory and diagnostic services, it was integrally related to the Hospital’s services and, therefore, would have no independent value to the referring Physician. Thus, the Interface was not remuneration and would not result in sanctions under the AKS.

For more information regarding this and related issues, please contact Adrienne Dresevic, Esq., or Carey Kalmowitz, Esq. at (248) 996-8510, (212) 734-0128 or visit the HLP website.

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