By John H. Fisher II
April 23, 2020
The following is a list of categories of the Stark Law Blanket Waivers permitting deviations from the provisions of the Stark Law where necessary for a COVID-19 purpose. See Background on CMS Stark Law Waiver. The definition of what constitutes a COVID-19 purpose is relatively broad, but there does need to be a connection that is necessitated by the virus. What is a COVID-19 Purpose?
The purpose of the waiver is to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in the Medicare, Medicaid, and CHIP programs; and ensure that health care providers may be reimbursed for such items and services absent the government’s determination of fraud or abuse.
Waiver Areas – (Remember, the waivers only apply where there is a COVID-19 purpose.)
- Service Compensation – Above OR Below Fair Market Value. Remuneration from an entity to a physician that is above or below the fair market value for services personally performed by the physician to the entity.
- Office Space Rental Charges. Rental charges paid by an entity to a physician (or an immediate family member of a physician) that are below fair market value for the entity’s lease of office space from the physician.
- 3. Equipment Lease Rental Charges. Rental charges paid by an entity to a physician that are below fair market value for the entity’s lease of equipment from the physician.
- Below Fair Market Value Purchases. Below fair market value purchases of items or services from a physician. For example, a hospital purchasing an unused respirator from a physician or a physician giving a hospital a huge supply of masks and gowns.
- Below Market Rent. Below fair market value for a physician to lease office space from the entity. For example, to permit the physician to open a COVID-19 focused clinic on the hospital campus.
- Below Market Equipment Rental. Rental charges paid by a physician to an entity that are below fair market value for the physician’s lease of equipment from the entity.
- Below Market Use of Premises. Remuneration from a physician for below fair market value use of the entity’s premises or for items or services purchased by the physician from the entity. For example, to permit a physician to have a satellite office if necessitated as a result of the virus.
- Medical Staff Incidental Payments in Excess of Limits. Remuneration from a hospital to a physician in the form of medical staff incidental benefits that exceeds the limit set forth in 42 CFR 411.357(m)(5).
- Non-monetary Compensation Above Limits. Remuneration from an entity to a physician in the form of nonmonetary compensation that exceeds the limit set forth in 42 CFR 411.357(k)(1).
- 10. Below Market Loans to Physician. Remuneration from an entity to a physician from a loan to the physician at below market interest or on favorable terms unavailable absent referrals.
- Below Market Loans from Physician. Remuneration from a physician to an entity resulting from a loan to the entity with an interest rate below fair market value and/or on terms that are unavailable absent referrals.
- Temporary Expansion of Physician Owned Hospital Beds. The referral by a physician owner of a hospital that temporarily expands its facility capacity above the number of operating rooms, procedure rooms, and beds for which the hospital was licensed; provided a COVID-19 purpose is present.
- ASC to Hospital Conversions. Referrals by a physician owner of a hospital that converted from a physician owned ambulatory surgical center to a hospital on or after March 1, 2020, but subject to a variety of specific requirements.
- Home Health Referrals. The referral to a home health agency that does not qualify as a rural provider under 42 CFR 411.356(c)(1); and in which the referring physician has an ownership or investment interest.
- 15. DHS Not in Same or Centralized Building. The referral by a physician to a group practice designated health services location that does not qualify as a “same building” or “centralized building” for purposes of 42 CFR 411.355(b)(2). Permits flexibility of making DHS services available at remote or temporary treatment locations.
- Referrals for DHS in Patient’s Home. The referral by a physician in a group practice for medically necessary designated health services furnished by the group practice to a patient in his or her private home, an assisted living facility, or independent living facility where the referring physician’s principal medical practice does not consist of treating patients in their private homes.
- Rural Referrals. The referral by a physician to an entity with which the physician’s immediate family member has a financial relationship if the patient who is referred resides in a rural area.
- Waiver of Written Signature. Waiver of the requirements that a compensation arrangement satisfy writing or signature requirement(s) as long as the arrangement satisfies each other requirement of the applicable exception, unless such requirement is waived under one or more of the blanket waivers set forth above.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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