Healthcare Alert: Proposed extension of EMR donation exception and safe harbor

The current Stark exception and safe harbor under the Medicare and Medicaid anti-kickback law permitting the donation of up to 85 percent of certain eligible electronic medical record (“EMR”) expenses to referral sources is scheduled to sunset on December 31, 2013. However, the government has proposed extending the expiration date of the Stark exception and anti-kickback safe harbor through December 31, 2016. In proposed notices of rule making with respect to both the Stark exception and the anti-kickback safe harbor, the government is soliciting comments from the public for the next 60 days regarding whether the extension should be made and whether there should be any restrictions on certain types of donations. In particular, the government is requesting comments as to whether donations by laboratories should be excluded in light of concerns that have been raised regarding the use of EMR donations in exchange for referrals for laboratory testing.