CMS, OIG Proposals on Self-referral, Safe Harbor Rules Draw AAFP Comment

All Parties Agree on Overall Goal: Increased EHR Implementation

June 19, 2013 02:00 pm News Staff

The AAFP recently took advantage of an opportunity to highlight its agreement with -- and some concerns about -- two federal proposals that would tweak existing health information technology policy so as to facilitate physicians' adoption of electronic health record (EHR) technology.

[Stock photo-Magnifying glass on top of notebook and Govt. Relations book]

The June 5 letter from AAFP Board Chair Glen Stream, M.D., M.B.I, was addressed to both CMS Administrator Marilyn Tavenner and HHS Inspector General Daniel Levinson; it addressed separate proposed rules from CMS and the Office of the Inspector General (OIG) that were published in the April 10 Federal Register.

In the CMS proposed rule(, the agency would "revise the exception to the physician self-referral prohibition for certain arrangements involving the donation of electronic health records items and service." Specifically, it would update an existing provision that defines the interoperability of EHR technology, remove the electronic prescribing capability requirement from the self-referral exception clause covering certain EHR arrangements, and extend the current Dec. 31, 2013, sunset date of the self-referral exception.

The OIG proposed rule( would amend the current safe harbor provision by updating the clause that deems EHR software interoperable, remove the requirement from the safe harbor clause that calls for electronic prescribing capability, and extend the current sunset date of Dec. 31, 2013.

According to Stream, Congress requires HHS to "promulgate regulations setting forth various 'safe harbors' to the anti-kickback statute, which would be evolving rules that would be periodically updated to reflect changing business practices and technologies in the health care industry."

"Overall, the AAFP supports the policy changes that CMS and OIG propose," said Stream. "Family physicians continue to be strong supporters of electronic health records, and the AAFP believes extending the two expiring sunset dates will further encourage medical practices to invest in the adoption of interoperable electronic health records."

Stream said the AAFP also agreed with the CMS and OIG proposals to revise EHR prescribing requirements as they relate to the rules' exception and safe harbor clauses, especially in light of CMS' electronic prescribing incentive program and the Medicare and Medicaid EHR incentive programs that reward physicians who use e-prescribing.

"We appreciate that CMS clarifies policy that allows for and encourages the donation of electronic prescribing technologies," said Stream.

However, Stream noted that the AAFP also recognizes the need for federal policy that would prevent potential improper actions by certain categories of donors. "One policy option that the AAFP would support is to exclude specific types of donors, such as laboratory companies, durable medical equipment suppliers and independent home health agencies," said Stream.

He also said the AAFP supports EHR systems capable of integrating information from multiple sources into a single system "to support the comprehensive information needs of primary care," and he called on CMS and the OIG to "finalize policies that further strengthen the use of core electronic health records features."

"Family physicians practicing in patient-centered medical homes need health information technologies that improve access, efficacy, efficiency and service for patients," said Stream.