Existing exemptions to federal physician self-referral and anti-kickback laws that enable hospitals and other entities to donate electronic health records systems to physicians would be extended under two proposed rules issued on April 9.

A rule from the Centers for Medicare and Medicaid Services proposes extending the donation program, currently sunsetting at the end of 2013, to the end of 2016. Similarly, a rule from the HHS Office of Inspector General also proposes an extension to the end of 2016 for its anti-kickback waiver. However, CMS and OIG both will consider extending the waiver to the end of 2021, which is when the Medicaid EHR incentive program ends.

CMS in its rule also would remove the electronic prescribing requirement from donated EHRs as meaningful use systems are already required to support e-prescribing, and existing federal incentive programs encourage the practice. CMS further proposes to update its process for determining if donated EHRs are interoperable. The current donation program deems software interoperable if it has been certified not later than one year prior to being provided to a physician. CMS proposes that only software certified under 2014 Edition meaningful use certification criteria would be deemed interoperable.

CMS also proposes a new limit on the entities that can donate EHR software. It originally limited donors to hospitals, group practices, prescription drug plan sponsors and Medicare Advantage organizations, then in a final rule published in 2006 expanded the pool to “any designated health services entity,” to expedite EHR adoption. How, it proposes to return to the original four types of entities.

The proposed rules are scheduled for publication April 10 in the Federal Register, but are available now. The CMS rule is here and the OIG rule is here.

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