Healthcare Alert: Tennessee restricts donations of electronic health records

On March 4, 2013, the Tennessee Attorney General issued an opinion severely restricting many if not most donations of electronic health records (EHR) in Tennessee. Specifically, the Tennessee Attorney General relied on Tenn. Code Ann. 68-29-129(7), which is part of the Tennessee Medical Laboratory Act, and prohibits any person from soliciting the referral of specimens to such person’s (or to any other) medical laboratory or from contracting to perform medical laboratory examination of specimens “in a manner that offers or implies an offer of rebates to a person or persons submitting specimens, other fee-splitting inducements, participation in any fee-splitting arrangements, or other unearned remuneration.” The Tennessee Attorney General opined that this “anti-kickback” provision prohibits any explicit or implicit financial incentive to solicit a contract to perform medical laboratory examinations of specimens. Thus, even the implication of an offer by a medical laboratory of a rebate, fee-splitting inducement, fee-splitting arrangement, or “other unearned remuneration” to a person submitting specimens is prohibited.