Coronavirus (COVID-19) Legal Alerts

CMS Issues 18 Blanket Waivers To Physician Self-Referral Law During COVID-19 Pandemic

4.2.2020

In response to the COVID-19 pandemic, on March 30, 2020, Centers for Medicare & Medicaid Services (CMS) issued 18 blanket waivers of sanctions under the Stark Law, with a retroactive effective date of March 1, 2020.  Generally, the Stark Law prohibits a physician from making referrals for certain designated health services (DHS) payable by Medicare to an entity with which he/she has a financial relationship, unless all of the requirements of an exception are met.  The blanket waivers apply only to financial relationships and referrals that are related to six specified “COVID-19 Purposes.”  While physicians may use the blanket waivers without first notifying CMS, they are encouraged to establish and maintain records in a timely manner.  Waivers include:

  • Remuneration to a physician that is above or below fair market value (FMV) for services personally performed by the physician
  • Rental charges paid that are below FMV for space, equipment or purchased items or services
  • Excess medical staff incidental benefits
  • Excess non-monetary compensation
  • Loans with below FMV interest or terms unavailable from a lender
  • Self-referrals to home health agencies
  • DHS referrals furnished by a group practice in a location that is not the “same building” or “centralized building”
  • DHS referrals furnished by a group practice to a patient in his/her home, assisted living facility or independent living facility
  • Self-referrals if the patient resides in a rural area
  • Failure to satisfy the writing or signature requirement of an applicable exception

CMS’ guidance also provides a non-exhaustive list of examples of the application of the blanket waivers, including:

  • Payment to a physician above their previously-contracted rate for services to COVID-19 patients
  • Rental of office space or equipment at below FMV or at no charge
  • Provision of free telehealth equipment to facilitate telehealth visits
  • Sale of personal protective equipment at below FMV or at no charge
  • Loan of money to offset lost income resulting from the cancellation of elective surgeries
  • Provision of call coverage services before the arrangement is documented and signed by the parties

If you are a physician or health practitioner with a regulatory concern about your practice with respect to COVID-19 or any other reason, please contact Alyson Leone or any member of the Health Law Team.

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