Anti-kickback safe harbors could give boost to P4P

Under expanded safe harbors to anti-kickback statutes, physicians are now allowed to accept donations of electronic prescribing software, electronic health records software, and training services from hospitals and health plans, says the Department of Health and Human Services (HHS). To be covered in the new safe harbors, electronic health records software must be certified as being interoperable with other systems, and electronic prescribing software from one supplier must not restrict or limit compatibility with other systems. Also, donors may not select recipients using any method that takes into account the volume or value of referrals from the recipient.

Electronic health records will give more complete and accurate data to both providers and the Centers for Medicare & Medicaid Services, and will allow tracking of individual physician performance, says Scott A. Edelstein, a Washington, D.C.-based attorney who advises health care providers on legal and regulatory issues. The expanded safe harbors will likely speed the progress of pay-for-performance.

"That is definitely a driving force behind these rules," says Edelstein. While pay-for-performance does not require electronic health records, these will greatly facilitate the ability to track data for quality measurement purposes.

"I see these rules as being at least a step in the right direction for getting adoption of health information technology, and electronic health records in particular, done much quicker," says Edelstein.

[For more information, contact:

Scott A. Edelstein, Squire, Sanders & Dempsey, 1201 Pennsylvania Avenue, N.W., Washington, DC 20004. Telephone: (202) 626-6602. Fax: (202) 626-6780. E-mail: Web:]