The Department of Public Health for the state of Massachusetts has issued a ruling on electronic health record (EHR) donations by laboratories that says state law would be violated if a laboratory were to do so.
The Massachusetts Society of Pathologists (MSP), in conjunction with the College of American Pathologists (CAP), wrote a letter to the MA Department of Public Health in March 2013 stating the two groups were concerned laboratories “may be using EHR donations as an improper inducement for physician practices to refer patients” and that EHR donations may influence the behavior of referring physicians.
MSP and CAP also said these donations may lead to the use of laboratories that are not optimal for patient care as well as overutilization of services. The letter further went on to cite current MA law and questioned whether EHR donations by laboratories are permissible.
The response from the state of Massachusetts succinctly states it would indeed be a violation of state law for a laboratory to donate an EHR to a referring physician.
According to the most recent edition of CAP STATLINE, this decision makes Massachusetts the ninth state (New York, New Jersey, Missouri, Connecticut, Pennsylvania, Tennessee, Washington and West Virginia are the others) to formally clarify its state law is more restrictive than current federal law regarding EHR donation by laboratories.
This is certainly wonderful news for laboratories and patients in Massachusetts, and I applaud the MSP and the CAP for their work on this issue.
Unfortunately, current federal law still allows EHR donation by laboratories and smaller labs continue to lose business every day to behemoth labs that can afford to provide these kickbacks in exchange for referrals.
As many of you know, the safe harbor provision in the Anti-Kickback Statute that allows EHR donation by laboratories was originally scheduled to sunset on December 31, 2013. In April of this year, however, the Office of the Inspector General for the Department of Health and Human Services (OIG) and CMS proposed to extend the safe harbor beyond December 2013.
In my original post on this back in April, I stated that, even though OIG and CMS proposed this extension, I was happy they both seemed to recognize the safe harbor provision may have been abused and opened the proposed rules to public comment for a period of 60 days.
Not surprisingly, the American Urological Association (always a huge fan of getting free stuff from pathologists) is not only opposed to any changes in the list of protected donors, but also wants the sunset provision eliminated so that EHRs can be donated forever.
Disappointingly but also not surprisingly, Dr. James Madara, a pathologist and EVP and CEO of the American Medical Association, submitted a comment that also says there should be no changes to who can donate an EHR and that EHR donation should be allowed forever.
The final rule is due out in December, and I will be paying close attention to their decision.