Federal Anti-Kickback Statute Safe Harbors Essay

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Federal Anti-Kickback Statute Safe Harbors
The OIG has adopted two safe harbors allowing for certain arrangements involving the donation of electronic prescribing and electronic health records (“EHR") technologies. The safe harbors reflect an attempt to encourage the donation of this technology in circumstances where the donations are unlikely to be constituted inducements or rewards for the generation of business payable by federal health care programs. Electronic Prescribing Items and Services
The electronic prescribing safe harbor shields the donation of hardware, software, and information technology and training services by certain donors to certain recipients in connection with the Medicare Part D program. {Dunlop, 2007 #14}
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Under this safe harbor, any individual or entity that furnishes and bills for items and services payable by a federal health care program may donate such software and services to a recipient in need of EHR technology. {Dunlop, 2007 #14} The donation of hardware, however, is not covered by the safe harbor. Furthermore, the safe harbor will sunset at the end of 2013, after which health care providers will be expected to shoulder the full cost of EHR technology. Certain restrictions apply to the donation of EHR technology under the safe harbor. The donation must be set forth in a signed, written agreement specifying the donor’s costs. The recipient must pay 15% of those costs. Furthermore, the donation and receipt of the technology cannot be conditioned or predicated upon the value or volume of referrals or business otherwise generated between the parties that is payable by a federal health care program.{Dunlop, 2007 #14} Finally, the technology must be interoperable with other EHR and electronic prescribing systems, and its use cannot be restricted on the basis of payor status.
Certification Criteria
The Certification Commission for Healthcare Information Technology (“CCHIT”) has established criteria for ambulatory EHR functionality, interoperability, security and reliability. The Department of Health and Human Services has declared CCHIT a recognized certification body, meaning that EHR systems that meet

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