Amid the Coronavirus (COVID-19) pandemic, health care facilities must adapt to this new crisis that is overwhelming hospitals, doctors’ offices, and other medical facilities. Blanket waivers have been issued for policies under Stark Law, and the Anti-Kickback Statute (AKS) has implemented a new policy in response. Adaptations during this time are meant to lessen stress on health care facilities and doctors, as well as provide more flexibility to better combat the pandemic.
What is Stark Law?
Stark Law bans physicians from being able to refer patients to specific health care facilities that are paid for by Medicare if there is a financial relationship between the entities. Financial benefits can be indirect or direct, such as investments or compensation. Although the Stark Law is not a criminal statute, it is a strict liability statute; proof of ill intent is not required to show abuse, but penalties involving ill intent may be greater. However, there are exceptions to certain entities of which physicians should be aware. Penalties are often heavy for physicians and can include a monetary penalty up to $15,000 for each forbidden referral. New waivers were executed on March 1, 2020 to prevent physicians and health care facilities from being penalized during the crisis.
Waivers for Stark Law
Section 1135 of the Social Security Act allows modifications of sanctions that would have been previously enforced by waiving certain good faith relationships that would violate Stark Law in normal circumstances. However, these temporary modifications must be COVID-19 related. Important COVID-19 waivers include the following:
- Medically necessary services
- Addressing patient and community needs
- Expanding capacity of providers
- Shifting to alternative settings for diagnosis and care to specific COVID-19 needs
- Addressing business and medical practice interruption during the pandemic
Qualifications may seem broad. It is always advisable to consult with a physician lawyer who is well versed in health care law. Physicians will be protected if they conform to the Remuneration Waiver or the Ownership Waiver.
Remuneration Waiver and Ownership Waiver
The Remuneration Waiver consists of remuneration to physicians paid by an entity for services performed that is above or below fair market value; this can include rent for leases and equipment, remuneration for items and services, loans, medical staff incidental benefits, and much more.
The Ownership Waiver involves referrals to hospitals that temporarily expanded to assist patients or ambulatory surgical centers that were converted into hospitals under certain circumstances. Other referrals can include home health agencies, group practices, and financial relationships between the physician’s family and an entity or a physician and an entity.
Anti-Kickback Statute Policy
The AKS makes soliciting, kickbacks, bribery, and other monetary relationships illegal between the physician and a federal health care program, such as Medicaid or Medicare. Under the AKS, there must be intent to pay remuneration for a specific referral. However, like Stark Law, there are exceptions.
To accommodate for the pandemic, there will not be enforcement of administrative sanctions, which include permissive exclusion or civil monetary penalties. The Ownership Waivers do not qualify. Even though the waivers were implemented on March 1, 2020, AKS policies are exercised on or after April 3, 2020. Navigating these difficult waivers and policies can be stressful for physicians and health care entities. It is strongly advised to speak to an experienced lawyer during this time to review new procedures that apply during the pandemic.
Philadelphia Physician Lawyers at Sidney L. Gold & Associates, P.C. Protect the Rights of Physicians During the Pandemic
If you are a physician facing penalties for Stark Law or AKS violations, the Philadelphia physician lawyers at Sidney L. Gold & Associates, P.C. are here to help. We will help you understand changing policies during this time and will protect your rights. Contact us online or call us at 215-569-1999 for a free consultation. Located in Philadelphia, we serve clients throughout Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.