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Update: EHR Donation Sunset Extended

on Thursday, 26 December 2013 in Health Law Alert: Erin E. Busch, Editor

At long last, the Office of Management and Budget (OMB) approved final rules extending the sunset on the Stark exception and an Anti-Kickback safe harbor. As addressed previously in this Health Law Advisory article, both the exception and the safe harbor were scheduled to sunset on December 31, 2013. This meant that had CMS and the OIG done nothing, hospitals would no longer have been permitted to donate qualified EHR software to physician practices.


On December 23, the OMB approved final rules submitted by both CMS and the OIG. The proposed rules offered a December 31, 2016, sunset. However, the final rules provide even more time to donate EHR with a new sunset of December 31, 2021. This date coincides with the end of the Medicaid EHR incentive program.


The final rule also specifies that “laboratory companies” are not permitted to utilize the exception to donate EHR to physician practices. This change had been suggested by various industry groups that were concerned of potential improper arrangements between lab companies, EHR vendors and physician practices. The final rule also eliminates from the exception requirements related to electronic prescribing capabilities and clarifies that donors may not limit or restrict the use, compatibility or interoperability of donated items or services.


The final rules are expected to be published in the Federal Register on December 27, 2013.


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