Kickbacks and Contradictions: The Anti-Kickback Statute and Electronic Health Records

Daniel E. Rheiner · 17 Vand. J. Ent. & Tech. 2

Abstract

The Obama Administration has made the universal adoption of electronic health records a major policy priority, passing the Health Information Technology for Economic and Clinical Health (HITECH) Act, which creates incentives for physicians and hospitals to computerize their medical records. This effort has been largely successful, as evidenced by the significant increase in medical providers who have adopted electronic health records. However, for the President to achieve his goal of computerizing all medical records in the United States, he will need to ensure that other federal laws do not conflict with the incentive structure created by the HITECH Act. The Anti-Kickback Statute has the potential to limit the effectiveness of the HITECH Act by prohibiting hospitals from donating electronic health record technology to physicians. In order to ensure that the entire federal regulatory scheme incentivizes the adoption of electronic health records, the Department of Health and Human Services should draft a broad safe harbor that allows hospitals to donate the full cost of purchasing, implementing, and maintaining electronic health record technology to physicians.