Corporate Compliance

Non-employee access to technology

Compliance Monitor, February 9, 2007

Q: Our hospital is considering implementing an e-prescribing system. Is it okay to provide this technology to the members of our hospital's medical staff who are not employed by the hospital?

A: This is a timely question. E-prescribing is becoming increasingly prevalent in the private sector. In October 2005, the OIG and CMS each proposed rules that were published in the Federal Register.

The OIG is considering a new safe harbor to the Anti-Kickback Statute, and CMS is proposing a new regulatory exception for the physician self-referral (Stark) law.

If these proposals are adopted, a hospital could provide e-prescribing technology to non-employed members of its medical staff and be protected under each of these federal statutes. The OIG has long-standing concerns about the provision of free goods or services to an existing or potential referral source.

The OIG and CMS proposals on e-prescribing technology are substantially similar. The proposed rules broadly define protected items that are necessary to conduct e-prescription drug transactions, including hardware and software, Internet connectivity, and training.

Under the proposed rules, a recipient (e.g., a member of the hospital's medical staff) would certify that the items or services received are not technically or functionally equivalent to items and services that the recipient currently possesses or has obtained.

Both the OIG and CMS solicited comments on their respective proposed rules from interested parties by December 12, 2005. As of this writing, no final rules have been published.

In the interim, hospitals should consider what they want to provide to nonemployed members of their medical staff and should consult counsel as needed.

Thanks to Bruce Armon, Esq., a partner in the Philadelphia office of the law firm Saul Ewing, LLP, for answering this question.

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