http://www.medpagetoday.com/MeetingCoverage/HIMSS/63409?xid=nl_mpt_DHE_2017-02-25&eun=g885344d0r&pos=4

Some aspects of EHRs, telemedicine might technically be illegal.

Federal anti-kickback laws may be old, but they’re still relevant, even with something very modern like health information technology (IT), Scott Grubman, JD, said here Thursday at the annual meeting of the Healthcare Information and Management Systems Society (HIMSS).

“So much technology in the healthcare space is to facilitate referrals,” such as when one provider transmits information to another, said Grubman, an attorney at Chilivis, Cochran, Larkins & Bever, in Atlanta. “If those referrals wind up being reimbursed by a federal healthcare program, a company can violate the anti-kickback statute.”

An 82-Year-Old Law

The anti-kickback statute, a version of which was first passed in 1935 and has been amended several times since with the introduction of Medicare and Medicaid, prohibits anyone from “knowingly and willfully paying, offering, soliciting, or receiving remuneration” in return for referring patients to services that are paid for by Medicare, Medicaid, and other federal healthcare programs.

The statute not only prohibits payments to providers, but also prohibits remuneration to beneficiaries, which means services like telemedicine and electronic health records (EHRs) might also be involved, Grubman noted.

Although the government says it wants to encourage technology growth in healthcare, “unfortunately sometimes what they don’t realize is that regulations that have been on the books for years — and are still applicable — don’t mesh well with the explosion of healthcare technology.”

There are two ways technology could be implicated in violations of the anti-kickback rule, he continued. The first way is if technology is being given to a provider to be used to actually issue the referrals that are implicated in the act — in bygone days this would mean if physicians are given fax machines to fax referral orders for which they get bonuses.

“There is lots of guidance [in the rule] that’s related to fax machines, so we have to figure out how to apply [the fax machine guidance] to the provision of tablets or electronic health records [to doctors],” he said.

The second way is if a technology that is used in any way to facilitate referrals — such as to provide the medical information to justify a referral order. “So if there’s technology that can facilitate a referral between a physician and a hospital, or between a hospital and pathology lab, that technology potentially implicates the anti-kickback statute.”