On October 6, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services released a "policy reminder" alert warning that healthcare companies that prevent patient electronic health records from being shared, known as "information blocking," will not benefit from the electronic health record safe harbor to the federal anti-kickback statute.

The OIG warns that interfering with the transmission of patient information violates the EHR safe harbor condition that the donor "does not take any action to limit or restrict the use, compatibility, or interoperability of the items or services with other electronic prescribing or electronic health record systems (including, but not limited to, health information technology applications, products or services).” The alert cites two examples of possible non-compliant activity: (1) an arrangement in which a donor precludes or inhibits a competitor from interfacing with the donated system, and (2) an agreement in which an EHR technology vendor agrees with a donor to charge higher interface fees to non-recipient providers or competitors. Other examples of possible impermissible “information blocking” may include exclusive data sharing arrangements tied to software or information technology or required payments for data transmission. 

The OIG alert should serve as a prompt for organizations that have availed themselves of the EHR safe harbor to review their existing arrangements for any conditions that could be construed as improper “information blocking.”