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.