15. Electronic Health Records Technology

Nonmonetary remuneration (consisting of items and services in the form of software or information technology and training services) necessary and used predominantly to create, maintain, transmit, or receive “electronic health records,”* if all of the following conditions are met:
 

  1. The items and services are provided to an individual or entity engaged in the delivery of health care by: (i) an individual or entity that provides services covered by a Federal health care program and submits claims or requests for payment, either directly or through reassignment, to the Federal health care program; or (ii) a “health plan.”

  2. The software is “interoperable”* at the time it is provided to the recipient. For purposes of this subparagraph, software is deemed to be “interoperable”* if a certifying body recognized by the Secretary has certified the software within no more than 12 months prior to the date it is provided to the recipient.

  3. The donor (or any person on the donor’s behalf) does not take any action to limit or restrict the use, compatibility, or interoperability of the items or services with other electronic prescribing or electronic health records systems.

  4. Neither the recipient nor the recipient’s practice (or any affiliated individual or entity) makes the receipt of items or services, or the amount or nature of the items or services, a condition of doing business with the donor.

  5. Neither the eligibility of a recipient for the items or services, nor the amount or nature of the items or services, is determined in a manner that directly takes into account the volume or value of referrals or other business generated between the parties. For the purposes of this paragraph, the determination is deemed not to directly take into account the volume or value of referrals or other business generated between the parties if any one of the following conditions is met:

(i) the determination is based on the total number of prescriptions written by the recipient (but not the volume or value of prescriptions dispensed or paid by the donor or billed to a Federal health care program);
(ii) the determination is based on the size of the recipient’s medical practice (for example, total patients, total patient encounters, or total relative value units);
(iii) the determination is based on the total number of hours that the recipient practices medicine;
(iv) the determination is based on the recipient's overall use of automated technology in his or her medical practice (without specific reference to the use of technology in connection with referrals made to the donor);

(v) the determination is based on whether the recipient is a member of the donor's medical staff, if the donor has a formal medical staff;
(vi) the determination is based on the level of uncompensated care provided by the recipient; or

(vii) the determination is made in any reasonable and verifiable manner that does not directly take into account the volume or value of referrals or other business generated between the parties.

6.  The arrangement is set forth in a written agreement that:

(i) is signed by the parties;
(ii) specifies the items and services being provided, the donor’s cost of the items and services, and the amount of the physician’s contribution; and
(iii) covers all of the electronic health records items and services to be provided by the donor. This requirement is met if all separate agreements between the donor and the physician (and the donor and any family members of the physician) incorporate each other by reference or if they cross-reference a master list of agreements that is maintained and updated centrally and is available for review by the Secretary upon request. The master list must be maintained in a manner that preserves the historical record of agreements.

7.  The donor does not have actual knowledge of, and does not act in reckless disregard or deliberate ignorance of, the fact that the recipient possesses or has obtained items or services equivalent to those provided by the donor.
8.  For items or services that are of the type that can be used for any patient without regard to payor status, the donor does not restrict, or take any action to limit, the recipient’s right or ability to use the items or services for any patient.
9.  The items and services do not include staffing of the recipient's office and are not used primarily to conduct personal business or business unrelated to the recipient’s clinical practice or clinical operations.
10.  Before receipt of the items and services, the recipient pays 15% of the donor’s cost for the items and services. The donor (or any affiliated individual or entity) does not finance the recipient's payment or loan funds to be used by the recipient to pay for the items and services.
11.  The donor does not shift the costs of the items or services to any Federal health care program.
12.  The transfer of the items and services occurs, and all conditions in this paragraph have been satisfied, on or before December 31, 2021.

* “Electronic health record” means a repository of consumer health status information in computer processable form used for clinical diagnosis and treatment for a broad array of clinical conditions.

Anti-Kickback Safe Harbor

Sources: 42 C.F.R. § 1001.952(y)