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Adopting electronic prescribing and electronic health records

Compliance Monitor, August 25, 2006

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Q: Our hospital is moving quickly towards adopting electronic prescribing and electronic health records technology. We would like our medical staff physicians, none of whom are employees, to get access to these benefits. Legally, what are we permitted to do?

A: On August 8, the Federal Government published in the Federal Register final rules that provide regulatory exceptions pursuant to the federal Stark Law statute and new anti-kickback statute safe harbors relating to electronic prescribing items and services, and electronic health records items and services. These rules, which are effective October 10, 2006, set forth detailed procedures that your hospital should follow if it would like to ensure that its medical staff physicians can adopt the hospital's electronic prescribing and electronic health records technology.

The Stark statute and the anti-kickback statute are distinct laws and apply to different entities in the health care delivery system. To ensure compliance, your hospital should make sure its business arrangement with its medical staff physician complies with each element of the Stark regulatory exception, and with each element of the anti-kickback Statute safe harbor.

Remember that Stark Laws have no intent requirement. If an arrangement does not squarely fit within a Stark regulatory exception, it is illegal. By contrast, an arrangement that does not meet each tenet of an anti-kickback statute safe harbor is not necessarily illegal, though it will not have the protection provided by the safe harbor. E-prescribing and e-health records are becoming increasingly important to hospitals and the provider community. These two new final rules provide important guidance for hospitals that would like to share the benefits of this technology. Your agreements with your medical staff physicians for these e-technologies should incorporate the provisions of these two new rules.

Thanks to Bruce D. Armon, Esq., a partner with the Philadelphia-based law firm Saul Ewing LLP, answers this week's question. Bruce specializes in healthcare law and frequently speaks to physician and healthcare audiences. He can be reached at barmon@saul.com. This Q&A first ran in Medical Staff Legal Advisor.

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