The Department of Health and Human Service’s Office of the Inspector General says information blocking may affect electronic health records safe harbor protections under the federal anti-kickback statute.

According to an OIG industry alert released this week, one of the EHR safe harbor conditions requires that “the donor (or any person on the donor’s behalf) does not take any action to limit or restrict the use, compatibility, or interoperability of the items or services with other electronic prescribing or EHR systems.”

Consequently, donations of items or services that have limited or restricted interoperability due to action taken by the donor, recipient or any person on the donor’s behalf would fail to meet conditions of a safe harbor to promote use of technology to communicate with products of other vendors, according to the agency.

OIG continues to believe that “any action taken by a donor (or any person on behalf of the donor, including the [EHR] vendor or the recipient) to limit the use of the donated items or services by charging fees to deter non-recipient providers and suppliers and the donor’s competitors from interfacing with the donated items or services would pose legitimate concerns that parties were improperly locking-in data and referrals and that the arrangement in question would not qualify for safe harbor protection,” states the alert.

Katherine Harris, a spokeswoman for the OIG, said the agency issued the alert this week to coincide with National Health IT Week, held October 5-9. “Interoperability has been an issue and this was a policy reminder,” Harris said. “It seemed like a good time to remind people about our thinking on this issue. There are indications that information blocking is a pretty big problem.”

Also See: Info Blocking Gains Prominence as Interoperability Challenge

In April, the Office of the National Coordinator for Health IT sent a report to Congress on the problem of electronic health information blocking, discussing how provider and vendor “bad actors” are interfering with data exchange to the detriment of patients and their care. According to the ONC report, some providers and vendors have created technical, legal and business barriers between their EHR systems and other systems to interfere with access to information. 

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