Stark exceptions make it safer to provide docs with EHRs

The Centers for Medicare & Medicaid Services (CMS) recently proposed a rule that revises the exception, known as the Stark Exception, to the federal physician self-referral prohibition (the Stark Law) for certain arrangements involving the donation of electronic health record (EHR) items and services to physicians or other allied health providers.

At the same time, the Office of the Inspector General (OIG) of the Department of Health and Human Services proposed its own rule revising the safe harbor regulation concerning EHR items and services under the Federal Anti-Kickback Statute.

Together, they would amend the 2006 rules from CMS and OIG that encourage the adoption of EHR systems and promise financial rewards to providers showing meaningful use of EHRs.

(See the story below for a summary of the changes from the rules.)

The rule changes are intended to address some of the financial barriers to adopting EHRs that have been known for some time, explains Robert Wah, MD, global chief medical officer for CSC, a technology consulting company based in Falls Church, VA. Wah was deputy national coordinator of health information technology in 2006 when exceptions to Stark and the anti-kickback law were first adopted.

“If the hospital has already made the capital investment in an EHR system, the marginal expense of the expanding that out to bring the physician into the network was relatively low, yet the benefit to the physician was fairly high,” Wah explains. “There were hospitals interested in pursuing that, but they were concerned about the Stark regulation and anti-kickback. That was the origin of these exceptions, and now the government is expanding that in light of what we know now.”

The revisions should give hospital risk managers a good idea of how regulators will handle this issue, Wah says. When the rules first came out in 2006, some hospital leaders were skeptical because there was no clear precedent to show how the donation of an EHR system would be handled by regulatory agencies, he says. “We have precedent now, after these years, and that body of experience can give people some information when looking at these arrangements,” he says.

Wah points out that the benefits of providing access to your hospital’s EHR system are even greater now than they were in 2006. With many of the changes taking place in healthcare, streamlined communication will be a priority, and digital communication is the way to go, he says.

“When hospitals are thinking about the risks and benefits of this type of collaboration, that’s one thing to consider,” Wah says. “Can this get them to the goal of thriving in the new health system reform environment? Consider the risks, but think about the benefits as well.”


Robert Wah, MD, Global Chief Medical Officer, CSC, Falls Church, VA. Telephone: (703) 876-1000.

Rules extend the Stark exception and remove prescribing requirement

Proposed rules from the Centers for Medicare & Medicaid Services (CMS) and the Office of the Inspector General (OIG) of the Department of Health and Human Services will allow hospitals to provide an electronic health record (EHR) system for physicians without running afoul of anti-kickback and self-referral laws.

Robert Wah, MD, global chief medical officer for CSC, a technology consulting company based in Falls Church, VA, provides this summary of the significant changes:

• Deadlines extended: The Stark exception and the safe harbor are scheduled to sunset on Dec. 31, 2013, but the proposed rules extend the sunset dates to Dec. 31, 2016, or Dec. 31, 2021, which is when Medicaid’s “meaningful use” incentive program ends.

• Electronic prescribing provision removed: CMS and OIG propose deleting the mandate that donated software must contain electronic prescribing capability. The requirement originally was meant to encourage the adoption of electronic prescribing, but both agencies now say there are other drivers for that goal.

• Interoperability provisions: The rules currently require that donated EHR software be certified as “interoperable” within the 12 months before it is given to the recipient. The changes would require only that the software be certified as interoperable at the time of the donation.