Congressional and Regulatory Affairs

February 26, 2013

Office of Inspector General

Congressional and Regulatory Affairs

Department of Health and Human Services

Attn: OIG-121-N; Solicitation of New Safe Harbors and Special Fraud Alerts

Dear Patrice Drew:

We are submitting comments on behalf of the Home Care Technology Association of America (HCTAA), an affiliate of the National Association for Home Care & Hospice (NAHC).

HCTAA was established in 2005 to amplify the voice of the home and hospice care profession and to support initiatives that encourage the use of technologies to improved person-centric longitudinal care coordination in the home. HCTAA believes that home care and hospice providers that are properly equipped with advance technological solutions will serve a central role in the delivery of healthcare to persons at home by ensuring quality, efficiency, and coordinated care. Our purpose in submitting these comments is to provide for needed feedback on exceptions to federal healthcare anti-kickback statues involving electronic health records to support the interoperability of health information in the home health care and hospice settings.

Providers engaged in the delivery of care in the home, including home health and hospice agencies, represent a significant component of the health care delivery system. There are approximately 33,000 home health care providers delivering care to approximately 12 million individuals each year because of acute illness, long-term health conditions, permanent disability, or terminal illness. In most cases, the delivery of quality home health care and hospice services is very dependent upon the collaboration and exchange of health information across the continuum of care with our physician partners and with hospital systems. Therefore, we believe it is imperative that the Department of Health and Human Services (DHHS) through the Office of Inspector General (OIG) consider extending safe harbor provisions to protect the ability home health care and hospice providers to receive donations by hospitals of electronic health records software or information technology and training services.

With regard to the exportation of existing provisions, HCTAA/NAHC advocate for the extension of the safe harbor provision [42 C.F.R. § 1001.952(y)(1) Electronic health records items and services] scheduled to expire on December 31, 2013. The OIG might consider an alignmentof the EHR Safe Harbor provision with the schedule for EHR implementation defined by the Meaningful Use Program [45 CFR 170] in order to further encourage the adoption of Certified Electronic Health Records by physicians.

HCTAA/NAHC also advocates that EHR Safe Harbor provisions that cover electronic health records items and services could cover other providers, such and home health care and hospice agencies, to encourage donation of EHR technologies by hospitals or other groups. Therefore, we request that the OIG clarify how the EHR Safe Harbor provision protects “other health care providers” and also its relationship to anti-kickback statue (that applies to all providers, not just physicians). We request that if the EHR Safe Harbor provision do not adequately cover “other providers” that guidelines be established that would cover the transfer of electronic health records items and services for non-physician based healthcare providers. We also request from the OIG clarification on what is not permissible under the Stark anti-kickback statues (e.g. to what extent would a donation by a home health care provider to a physician be considered and an inducement for referrals and/or limit referrals). Therefore, our primary concern is to strengthen the relationships of home health care agencies to be able to both receive technologies from hospitals and other groups as well as to provide EHR technologies and services to physician partners under the EHR Safe Harbor provision.

Thank you for your time and consideration of matters of concern to the home health care and hospice community of providers. We fully support the call for widespread adoption of interoperable electronic medical records by hospitals, physicians, and home health care and hospice providers as part of the complement of long-term post-acute care providers (LTPAC).

Kind regards,

Richard D. Brennan, Jr.

Executive Director