Dermatology World August 2011 : Page 16
management in practice management insights if the vendor terminates its agreement with the donor, will the practice be able to continue using the software? In a V-shaped model, the practice may be able to continue using the software, but it may want to condition continu-ation of the agreement between the physician and donor on the donor’s continued relationship with the vendor. This may also raise issues with respect to how payment is to be handled if, for example, the donor has not finished paying for the software but the vendor goes out of business. Ideally, the physician should not have to assume any payment duties, but these issues should be addressed in the language of any agreements. Last, and perhaps most critical, is the issue of HIPAA and data control. Physicians should always own the data they enter into an EHR, and any EHR license agreement they sign should state as much; the data should not belong to either the donor or the vendor. Physi-cians should be vigilant about whether and how their data will be used, and whether they are getting anything in return for its use. This is especially critical in a linear arrangement where the physician has no direct contractual relationship with the vendor. However, in some circumstances, the data may be shared with the donor (as described more fully below), which can create ad-ditional issues under HIPAA, depend-ing on how data is stored. If the data is stored offsite, rather than at the practice offices, the practice will need a business associate agree-ment with the entity storing the data. This issue can become more com-plicated when the data is stored in a central repository maintained by the donor as part of a health information network or exchange, and when some of the data becomes incorporated into the records of other physicians or providers who are also part of the net-work. This is a common problem with 16 Dermatology WorlD // August 2011 AADA recoMMenDs extreMe cAution regArDing eHr DonAtions The American Academy of Dermatology Association recently wrote to the Office of the Inspector General and the Centers for Medicare and Medicaid Services asking them to close the loophole that allows pathology labs to donate electronic health records systems to physicians, as it raises concerns about fraud and abuse. It also alerted members to the risks of pursuing such donations. In the message to members, the Academy noted that dermatologists should “assess all opportunities and risks as they consider acquiring and using EhR systems.” While federal rules allow hospitals and labs to donate up to 85 percent of the cost of EhR software, training, and connectivity (but not hardware or maintenance) through Dec. 31, 2013, the Academy warned that “dermatologists interested in pursuing this opportunity should be very careful to follow the [compliance] requirements of the [anti-kickback] safe harbor and [Stark] exception, as well as to comply fully with both federal and state fraud and abuse laws,” noting that some states (including New york) ban such donations. The Academy also reminded members that donations cannot be dependent on referrals, and “dermatologists and labs may not factor in the volume or value of referrals or other business generated between them in connection with the EhR donation.” Indeed, discussion of any quid pro quo arrangement is a violation of the law. -ricHArD nelson hospital donations. When one member of the network terminates its relation-ship with the network, it will need the donor to return any protected health information (PHI) under HIPAA. This, however, can prove difficult if the do-nor still needs to be able to share that data with other providers who treat the patients that the data covers. In such circumstances, it may not be possible to remove data from the repository (although there should be no problems returning a copy of all the practice’s data to the departing member) without also removing PHI from another member’s records. In this situation, the business associate agreement will likely require the donor to maintain the PHI as if the business associate agree-ment were still in effect. A linear downstreamed arrange-ment also presents difficulties with respect to data control both during and after termination of the agreement between the physician and donor. For example, if the data is stored offsite in a vendor’s Web-based EHR, what happens if the vendor goes out of busi-ness? Who will store the data then? If the agreement between the vendor and the donor terminates, will the vendor return the data to the practice, continue to maintain it off-site, or will the ven-dor and practice need to enter into a contract directly? These types of issues should be considered and raised during negotiations, and ideally be addressed in the contract itself. MoVing foRwaRd Donated EHR software can provide a physician practice with much-needed software at a reduced price. However, “downstreamed” relationships can be difficult to navigate, and require careful consideration of the legalities and prac-ticalities. Consulting a lawyer familiar with EHR licenses and “downstreamed” relationships can be helpful. dw www.aad.org
AADA RECOMMENDS EXTREME CAUTION REGARDING EHR DONATIONS
RICHARD NELSON
<br /> The American Academy of Dermatology Association recently wrote to the Office of the Inspector General and the Centers for Medicare and Medicaid Services asking them to close the loophole that allows pathology labs to donate electronic health records systems to physicians, as it raises concerns about fraud and abuse. It also alerted members to the risks of pursuing such donations.<br /> <br /> In the message to members, the Academy noted that dermatologists should “assess all opportunities and risks as they consider acquiring and using EHR systems.” While federal rules allow hospitals and labs to donate up to 85 percent of the cost of EHR software, training, and connectivity (but not hardware or maintenance) through Dec. 31, 2013, the Academy warned that “dermatologists interested in pursuing this opportunity should be very careful to follow the [compliance] requirements of the [anti-kickback] safe harbor and [Stark] exception, as well as to comply fully with both federal and state fraud and abuse laws,” noting that some states (including New york) ban such donations.<br /> <br /> The Academy also reminded members that donations cannot be dependent on referrals, and “dermatologists and labs may not factor in the volume or value of referrals or other business generated between them in connection with the EHR donation.” Indeed, discussion of any quid pro quo arrangement is a violation of the law. <br /> <br />