Centers for Medicare and Medicaid Services Announces Blanket Waivers from Stark Law for COVID-19 Purposes

April 2, 2020 

By John Marren and Tom Babbo.

On March 30, 2020, Centers for Medicare and Medicaid Services (CMS) announced blanket waivers from the Stark Law for arrangements among health care providers that serve “COVID 19 Purposes.”    These “COVID 19 Purposes” include:

• Diagnosis or medically necessary treatment of COVID-19 for any patient or individual, whether or not the patient or individual is diagnosed with a confirmed case of COVID- 19;
• Securing the services of physicians and other health care practitioners and professionals to furnish medically necessary patient care services, including services not related to the diagnosis and treatment of COVID-19, in response to the COVID-19 outbreak in the United States;
• Ensuring the ability of health care providers to address patient and community needs due to the COVID-19 outbreak in the United States;
• Expanding the capacity of health care providers to address patient and community needs due to the COVID-19 outbreak in the United States;
• Shifting the diagnosis and care of patients to appropriate alternative settings due to the COVID-19 outbreak in the United States; or
• Addressing medical practice or business interruption due to the COVID-19 outbreak in the United States in order to maintain the availability of medical care and related services for patients and the community.

Significantly, the blanket waivers apply to above fair market value payments by hospitals and health systems to physicians, and below fair market value rent, supplies, technology, and services.  

While CMS is not requiring a formal application, notice, or review process to utilize the COVID-19 blanket waivers, the agency will require that any health care provider involved in an arrangement under the blanket waivers are expected to maintain documentation and records sufficient to justify the waiver’s use.  As such, when considering using the blanket waivers, maker sure to use proper care in detailing the structure, parties involved, clinical and business rationale, specific purpose(s), and any other terms, conditions, and limitations of any such arrangement.  

More information about the COVID-19 Stark waivers is available here:  https://www.cms.gov/files/document/covid-19-blanket-waivers-section-1877g.pdf