Kicking Back the Anti-Kickback Rules for Patient Data Sharing?

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By Michael Burger, Practice Lead, EHRs and EDI

Healthcare SilosThe government anti-kickback statute, aka the Stark legislation, prohibits physician ownership and involvement in certain kinds of healthcare activities. It’s long been the rule to prohibit, among other things, self-referral. Periodically there have been proposals to reduce the burden of the statute’s implementing regulations. Back in August, the Inspector General (IG) of the Department of Health and Human Services (HHS) issued a request for information (RFI) on possible exceptions that would enhance coordinated care. A recent response from the electronic health record (EHR) vendor, athenahealth, caught my eye.

Authored by athenahealth's director of government and regulatory affairs, Greg Carey, the response expressed support for a carve-out in the anti-kickback’s implementing regulations that would let providers pay "fair market value" for the transfer of patient data.

According to the response, patient data transfer most often occurs when a clinician is referring a patient elsewhere. However, the anti-kickback rules would prohibit any associated "transfer of value" back to those groups. The result: forcing "the curator of data to pay for the privilege of sending data electronically to a recipient." The response goes on to say that the anti-kickback rules also create an "effective economic disincentive" to sharing information.

In short, athenahealth’s Carey believes that "information exchange occurs best when there is a business case and problem to solve." The proposed solution is to let physicians make and receive nominal payments for the exchange of patient data.

I agree strongly that information exchange will occur when there is business case and a problem to solve. But I don’t think that the business case has anything to do with physicians charging or paying for clinical data exchange. In fact, I believe that enabling fees for clinical data exchange would have the unintended consequence of being a disincentive. If a cost is placed on sharing of clinical data, what if doctors don’t want to pay? Perhaps they would go without the data. Or, they might just say, “fax it to me.” They do that today--at no cost.

I’ve seen no evidence that providers are hesitant to share clinical data in conjunction with a referral or for any reason because of an anti-kickback concern. I view the challenge of data sharing as neither a technology nor regulatory challenge. It’s a business challenge. When health systems are competitors in the same market, there are business reasons why they don’t want to share clinical data between competing systems. Health systems are financially designed to keep patients within their care network.  And by making it easy for the competing health system to access patient clinical data from the other health system, both systems lose their competitive advantage by making it easy for patients to go out of network.

The business challenge to be solved, then, is how to enable competitors to share data without sacrificing competitive advantage. Quality- (and risk-) based reimbursement are ways to solve the challenge. The majority of health care today is reimbursed on a fee-for-service basis. There is a financial advantage to providing more services (even those that are duplicative) when you are compensated, based upon how many services are provided. As the pendulum slowly swings towards value-based reimbursement, the financial advantage of providing more services diminishes. The focus becomes one of public health, versus being driven by profit and market share. When a health system is at financial risk by treating patients without having access to the full patient record, the business case for clinical data sharing will be obvious. And data will be shared.

The comment period has closed on the RFI. The IG’s staff are busily digesting the public input they received, so it’ll be interesting to see what they come up with. What do you think? Drop me a line at michael.burger@pocp.com.