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Stark Law waived to facilitate COVID related medical services

stark law waiverBy: Jeff Cohen

The Secretary of Health and Human Services issued blanket waiver of the Stark Law on March 30th in order to facilitate COVID related medical services.  The waivers apply only to financial relationships and referrals related to COVID.  The circumstances and conditions under which the waivers apply are strictly and narrowly described.  Moreover, the waivers have no impact in the presence of fraud or abuse.  With respect to physicians wanting to provide designated health services (e.g. clinical lab services) related to COVID detection and treatment, for instance–

  1. the federal requirement that the DHS be provided in the same building as the physician office is waived; and
  2. the financial relationship limitations between the physician (or family member) and the DHS provider is waived.

The waiver also contains specific examples of waived interactions between providers and hospitals, including—

  1. a hospital paying a physician above previously contracted rates for treating COVID patients; and
  2. a hospital renting space in a physician office related to COVID patients below FMV or free of charge.

Despite the federal waivers, physicians have to take care to make sure whatever they do in response to COVID (a) isn’t likely to be construed as constituting “fraud or abuse,” and (b) is consistent with existing state law (since Florida has not yet lifted any laws applicable to physicians, such as the Florida Patient Self-Referral Act of 1992, which has many features similar to the Stark Law.)