c.2006 Alice G. Gosfield

Stark and Anti-kickback Protections for Giving EHR and e-Prescribing to Physicians

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Alice G. Gosfield

c.2006, Alice G. Gosfield

Who can give

Electronic prescribing: Same Hospital to member of medical staff PDP sponsor or MA organization Group practice to a “member”

EHR: Those plus, an ‘entity’ under Stark; For AKS – any entity which provides services and

submits claims under a federal health care program

c.2006, Alice G. Gosfield

Who can receive

A physician on staff of a hospital as long as eligibility does not take into account volume or value or referrals

Things that are OK to consider: Total # of scripts; size of practice (e.g., # of pts, pt

encounters, or RVUs); total # of hrs physician works; overall use of automated technology in the practice; level of uncompensated care physician renders

Any other reasonable and verifiable judgment not reflective of volume or value of referrals

c.2006, Alice G. Gosfield

What can be given

Electronic prescribing items and services Hardware, software or information

technology, training services “necessary and used solely to receive and transmit electronic prescription info”

Electronic health records Software or IT and training “necessary and

used predominately” for HER – no hardware

c.2006, Alice G. Gosfield

Conditions for Prescribing IT:Written Agreement and More

System meets Part D standardsDonor does not limit or restrict use or compatibility

with other electronic or EHR systemsSystem can be used for any patientReceipt of system is not a condition of referrals by

recipientDonor has no knowledge or does not act in

reckless disregard or deliberate ignorance of whether the physician has equivalent services or items

c.2006, Alice G. Gosfield

Conditions for EHR: Written Agreement and More

Software is interoperable as certified no more than 12 mos before by proper agency

No limitations on uses with other ITBefore receipt, physician pays 15% of donor’s

cost for items or servicesNo donor loans for the paymentRecipient doesn’t condition receipt on referralsNo donor knowledge of physician’s having

equivalent IT

c.2006, Alice G. Gosfield

EHR Conditions (2)

Can be used for all patientsDonation does not include staffing of

physician offices and is not used primarily for personal business or business unrelated to the medical practice

The software contains electronic prescribing capability or the ability to interface with the physician’s electronic prescribing system