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While not necessarily the model of clarity or guidance for clinical laboratories being asked to make Electronic Health Record (EHR) donations, the Massachusetts Department of Public Health (MDPH) has issued an opinion regarding EHR donations. 
 
Specifically, the MDPH opined that MGL c 111D, Section 8(4), the Massachusetts law relating to the referral of specimens to a clinical laboratory, is implicated, not necessarily violated, when a clinical laboratory makes an EHR donation to a referring physician. This law specifically states “A clinical laboratory shall not: offer or give a commission, rebate, or other fee, directly or indirectly to any person as consideration for the referral of a specimen derived from a human body to a clinical laboratory for examination by such laboratory.”

Whether an arrangement involving a clinical laboratory licensed in Massachusetts making a monetary donation to a physician to cover up to 85 percent of the cost of that physician’s EHR which results in the recipient physician either continuing a referral arrangement with the laboratory or subsequently initiating an arrangement for referral of specimens to the donating laboratory for analysis violates this law, however, is “fact-specific and made after review of the particular investigative findings.”

If you are concerned that your current EHR arrangement or proposed EHR arrangement may be in violation of MGL c 111D, Section 8(4), we can help determine whether your clinical laboratory's arrangement complies with Massachusetts law.

For more information, please contact:

Jenny McGovern 
312.642.6151
jmcgovern@mcdonaldhopkins.com

Richard S. Cooper
216.348.5438
rcooper@mcdonaldhopkins.com

Jane Pine Wood
508.385.5227
jwood@mcdonaldhopkins.com

McDonald Hopkins has a large and diverse healthcare practice, which is national in scope. The firm represents a wide variety of healthcare providers, facilities, vendors, technology companies and associations. Our diverse experience enables us to give our clients a unique perspective on the issues that may confront them in the rapidly evolving healthcare environment.

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