As health care providers continue to administer services during the Coronavirus (COVID-19) pandemic, the Centers for Medicare and Medicaid Services (CMS) and the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) have made temporary adjustments to Stark Law and the Anti-Kickback Statute (AKS), respectively.
These waivers and exceptions from sanctions are meant to allay physicians, nurses and others in the health care field — as they could find themselves, while treating patients during COVID-19, in situations that would otherwise constitute health care fraud.
Here’s what you should know.
On March 30, 2020, CMS announced a series of nationwide Section 1135 blanket waivers under Stark Law. These allow for remuneration and referrals limited solely to the duration of the COVID-19 public health emergency (retroactive to March 1, 2020), for the following “COVID-19 Purposes”:
The waivers would exempt providers from sanctions for noncompliance with the Stark Law — “absent the government’s determination of fraud or abuse” — for these types of arrangements:
In its blanket waiver document, the CMS provides examples of remuneration, referrals or conduct that would qualify for the waiver of sanctions:
On April 3, 2020, the OIG announced that it will not impose administrative sanctions for potential AKS violations for Coronavirus-related arrangements that are covered by some of the Stark Law blanket waivers. In order for a health care provider to receive this enforcement discretion, all conditions and definitions applicable to the blanket waivers must be satisfied.
In its statement, the OIG explains:
“Ordinarily, some financial relationships that implicate the physician self-referral law also may implicate, and potentially violate, the Federal anti-kickback statute. However, recognizing the unique circumstances of the COVID-19 outbreak, OIG will not impose administrative sanctions under sections 1128(b)(7) or 1128A(a)(7) of the Act, as those sections relate to the commission of acts described in the Federal anti-kickback statute, with respect to remuneration that is covered by section II.B.(1)-(11) of the Blanket Waivers.”
The OIG’s order has two key differences from the Stark Law blanket waivers:
With the COVID-19 national emergency, there have been a virtual flurry of exceptions, exemptions and adjustments issued for health care providers, in the regulatory, compliance and health care fraud arenas. These temporary changes to Stark Law and AKS are only the latest — and they probably won’t be the last.
As your health care practice continues to treat patients during the Coronavirus pandemic, the health care fraud attorneys at Chapman Law Group are here to make sure you’re in the know about not running afoul of the provisional rules in place. Contact us today so we can review what you need to know.
For 35 years, we have provided compliance consultation and representation for clients all over Michigan, including the Detroit, Ann Arbor, Grand Rapids, Dearborn and Troy areas; in Florida (Miami, Tampa, Jacksonville, West Palm Beach, Orlando and other regions), and nationally in regions including Los Angeles and Southern California, Chicago, Pittsburgh, and Washington, D.C.
Our extensive experience in key areas of regulatory compliance in healthcare include:
We represent licensed medical professionals across the U.S., including:
Our offices are in Detroit; Miami and Sarasota, Florida; Los Angeles/Southern California; and Chicago. Contact us today for a consultation and to show what we can do for you.
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Ronald W. Chapman II, LL.M.
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