EHR safe harbor extended through 2021

The sunset date for donation of items and services for EHR adoption has been extended to Dec. 31, 2021, by the Centers for Medicare & Medicaid Services (CMS) and the Department of Health & Human Services Office of Inspector General (OIG).

The extensions amending the Stark Law exception and the Anti-Kickback Statute safe harbor for donations and subsidies paid for adopting EHRs went into effect Dec. 31, when the old guidelines were due to expire. The Stark Law bans payments aimed at encouraging referrals to hospitals and the federal anti-kickback law prohibits payments designed to influence care for Medicare beneficiaries.

However, in an effort to encourage physicians to adopt costly EHR systems:

• CMS established an exception to the Stark law allowing hospitals to donate EHR software to physicians; and
• OIG established a safe harbor provision to protect such EHR donations from anti-kickback enforcement, provided that the physicians cover 15 percent of the cost of the EHR technology.

The decision is “consistent with and furthers our continued goal of promoting the adoption of interoperable [EHR] technology” and reduces “the likelihood that the exception will be misused by donors to secure referrals,” according to CMS.

The Healthcare Information & Management Systems Society (HIMSS) voiced its support for the Stark and anti-kickback extensions. The organization noted “HIMSS has historically supported making permanent and expanding the Stark exemptions and anti-kickback safe harbors beyond software and services used predominantly for EHRs. Although we encourage the elimination of the sunset provision, we appreciate the extension of the program to 2021.”