e-Prescribing and Electronic Health Record Safe Harbor

Since the Federal government wants to ensure the secure exchange of medical information, it advocates the adoption of Health Information Technology through coordinated partnerships between government agencies and private sector stakeholders. The Federal Register, dated August 8, 2006, titled, "Medicare and State Health Programs: Fraud and Abuse; Safe Harbors for Certain Electronic Prescribing and Electronic Health Records Arrangements Under the Anti-Kickback Statute; Final Rule", provides a safe harbor for certain arrangements involving the donation of electronic prescribing and electronic health record technology.
The following are some of the variances noted between eRx and EHR:

Who:
Donors -
eRx = Hospitals, Group Practice, PDP sponsors, and MA Organizations
EHR = (i) Individuals or Entities (ii) Health Plans

Recipients - Donors may not select recipients using any method that takes into account directly the volume or value of referrals from the recipient or other business generated between the parties.

What:
eRx = Hardware, software, internet connectivity, and training and support services
EHR = Software must include eRx, be interoperable, but can not include Hardware

When: Sunset Provision
eRx = None
EHR = 12/31/2013

How Much: Value
eRx = No limit
EHR = Recipient must pay 15% of the donor's cost

[Note: The aforementioned is not meant to be a legal interpretation of the Safe Harbor. Instead, it is a guideline for various stakeholders, donors, and recipients. Please refer to legal counsel for a definitive position relating to your health care entity.]
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