Tennessee Attorney General Robert E. Cooper Jr. (D) issued an opinion (No. 13-51) July 2 affirming that state law prohibits clinical labs from donating electronic health record (EHR) technology to doctors with which they have referral relationships. The Tennessee Medical Laboratory Act bans labs licensed in the state from soliciting business in any way that implies an offer of rebates, fee-splitting inducements, or other unearned remuneration, according to the AG’s opinion. The donation of EHRs by a lab to a physician would fall under those conditions, under the AG’s analysis. The opinion noted that labs licensed in Tennessee could donate EHR technologies or make monetary donations for EHR purchases to physicians in other states. The opinion was requested by Tennessee state Sen. Reginald Tate (D). Cooper’s office issued a similar opinion in March. That opinion had been requested by Sen. Doug Overbey (R). The Tennessee prohibition exists despite protections at the federal level for EHR donations under the anti-kickback statute and physician self-referral law. Under the existing anti-kickback statute safe harbor and physician self-referral law exception, such technology donations by clinical labs to doctors would be protected, but those provisions do not preempt state law. Those protections expire at the…
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