In recognition of National Health IT Week, the Office of the Inspector General published a policy reminder report to illustrate why information blocking in health IT is a problem, and that steps to prevent interoperability will not be granted safe harbor under federal anti-kickback laws.
The Anti-Kickback Statute is in place to prevent individuals and organizations from knowingly and willfully
soliciting, offering, paying or receiving payment for referrals of business reimbursement under any federal healthcare program. Safe harbors are exceptions to this statute.
"In some cases, a provider, such as a hospital, may seek to furnish software or information technology to an existing or potential referral source, such as a physician practice," the three-page memo reads. "This kind of arrangement potentially implicates the Federal Anti-Kickback Statute because the software or information technology is potential remuneration to the referral source. Arrangements involving the provision of software or information technology to a referral source should be scrutinized for compliance with the federal anti-kickback statute."
Any conditions related to information blocking in EHR sharing and interoperability are not subject to safe harbor protections.
"OIG remains committed to investigating potentially abusive arrangements that purport to, but do not actually, meet the conditions of the EHR safe harbor," the memo reads. "OIG continues to encourage the public to report instances when a donor (or someone on their behalf) acts to limit the interoperability of donated items or services, because OIG believes that, when such lock-in has occurred, investigation may establish that safe harbor conditions have not been met."