Massachusetts has become the ninth state to issue an opinion asserting state authority to regulate the practice of donations of electronic health record (EHR) software to physicians by laboratories. The state Department of Public Health on Sept. 16 issued an opinion saying that state law is “implicated when a clinical laboratory makes an EHR donation to a referring physician.” The department noted that a decision on a violation of the law is “fact-specific and made after a review of the particular investigative findings.” Eight other states have issued similar rulings: New York, New Jersey, Missouri, Connecticut, Pennsylvania, Tennessee, Washington, and West Virginia. Under a current exception to the anti-kickback statute, clinical laboratories are allowed to cover up to 85 percent of the cost of a physician’s EHR software. However, physicians and labs have long been at odds over the issue, with some labs and pathology practices complaining that they are essentially blackmailed into donating the EHR software or else risk losing the physicians as referral sources. The EHR exception expires at the end of 2013, but the Department of Health and Human Services (HHS) has proposed extending the safe harbor until the end of 2016. However, HHS indicated that it…
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