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CMS, OIG Propose Extension of Electronic Health Records Safe Harbor and Exception

April 19, 2013—The Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) each April 10 published a proposed rule related to electronic health records. The proposed rule would extend through Dec. 31, 2016, the current safe harbor under the anti-kickback statute, and the exception under the physician self-referral law to continue to allow donations of electronic health records to physicians. 

The current safe harbor and exception are due to sunset Dec. 31, 2013.  The current requirement that physicians must pay 15 percent of the donor’s cost for the items and services remains unchanged.  Comments must be submitted by June 10, 2013.

CMS and the OIG also propose to limit the scope of protected donors to hospitals, group practices, Prescription Drug Plan (PDP) sponsors, and Medicare Advantage (MA) organizations. The extent to which services that enable the interoperable exchange of electronic health records would be protected remains unclear.


Ivy Baer, J.D., M.P.H.
Senior Director and Regulatory Counsel
Telephone: 202-828-0499


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Washington Highlights, a weekly electronic newsletter, features brief updates on the latest legislative and regulatory activities affecting medical schools and teaching hospitals.

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Jason Kleinman
Sr. Legislative Analyst, Govt. Relations
Telephone: 202-903-0806