Revised EHR rules may tempt provider participation

"It is going to be easier for urologists to approach their hospitals and other stakeholders for some financial support for electronic health records," said Richard Rutherford, CMPE, director of practice management at AUA, who said his office is urging physicians to have that discussion.

Rutherford noted that, recently, large hospital networks have been extremely active in approaching physicians about putting together community networks. He also suggested that large managed care organizations might be a source of donations.

Subsequently, the department was deluged with comments from health care and information technology groups complaining that the regulations were still too restrictive as to who could donate, who could receive donations, and what help could be given to really encourage donations.

In response, fundamentally altered final rules were published in August 2006, and it appears they will make donations much easier than they were.

What has changed?

Under the anti-kickback statute, changes to the rule allow donations of qualified EHR items and services from many organizations and people in health care, defined as "health plans" and "individuals and entities that provide covered services and submit claims or requests for payment, either directly or through reassignment, to any federal health care program." The revised rule also removes restrictions on which entities may donate the qualified EHR items to physicians under the self-referral laws.

Donated EHR software must include electronic prescribing capability, but it also may include patient scheduling, billing, clinical support, and other relevant programs. The EHR software must be "interoperable" with other such software packages, although Chantal Worzala, PhD, senior associate director for policy at the American Hospital Association (AHA), said her organization still has some questions on exactly what "interoperable" means. She said AHA will work with federal officials on clarification of that issue.

Finally, in what is probably one of the most attractive points of the policy shift, the rules allow donors to provide training and help desk support, as well as Internet connectivity; however, hardware is specifically excluded.

No upper limit on the worth of items and services that may be donated has been specified, but the recipient must pay 15% of the donor's costs. Restrictions on such gifts to other health professionals are also removed, as rules under the anti-kickback statute now allow gifts to any "individuals and entities engaged in the delivery of health care."

Wait and see

"I think that it is fair to say that we are in a period of evaluation at the moment. What each individual hospital decides to do depends very much on their individual circumstances and individual IT strategies," Dr. Worzala said.

She indicated, however, that AHA appreciates the changes the Department of Health and Human Services has made to make donating easier. The expansion in the range of potential recipients, Dr. Worzala said, will allow hospitals to donate to physicians who don't work in their facility. Separate rules are in effect for software packages used "solely" for electronic prescribing; however, HHS seems to anticipate that many electronic prescribing programs will be embedded in an EHR.

The rules went into effect Oct. 10, 2006; exceptions to the rules will be in effect for 7 years, expiring on Dec. 31, 2013. Separate announcements from the Office of the Inspector General and from the Centers for Medicare and Medicaid Services may be found in the Aug. 8, 2006 Federal Register. These announcements contain discussions and tables listing donor and recipient qualifications and under what circumstances donations may be made.