Electronic Health Record (EHR)

The use of e-prescribing and electronic health records is accelerating 

On October 11, 2005, the Centers for Medicare and Medicaid Services ("CMS") and the Health and Human Services Office of Inspector General ("OIG") published separate, but parallel, proposed rules representing a unified effort to advance the goal of widespread adoption of electronic health records technologies by hospitals, physicians, and other health care providers. These proposed rules are in accordance with the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 ("MMA"), which directed the Secretary of HHS, in consultation with the Attorney General, to create an exception to the Stark law and a safe harbor under the Anti-Kickback Statute to protect certain arrangements involving the provision of non-monetary remuneration (consisting of items and services in the form of hardware, software, or information technology and training services) that is necessary and used solely to receive and transmit electronic prescription drug information.

CMS is responsible for administration of the Stark law, while the OIG is responsible for administration of the Anti-Kickback Statute. The OIG and CMS tried to ensure as much consistency as possible between the proposed rules, given the differences in the respective underlying statutes.

CMS's Proposed Rules
The Stark law prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she has a financial relationship, unless an exception applies. The Stark law also prohibits an entity from submitting claims to Medicare for those referred services, unless an exception applies. However, the Stark law establishes a number of exceptions, and grants the Secretary the authority to create additional regulatory exceptions for financial relationships that do not pose a risk of abuse.