By: Jennifer Jones Thomas

Physicians enrolled in Medicare are all-to-familiar with the constraints of the Stark Law which prohibits physicians from making referrals for designated health services (“DHS”) payable by Medicare when the physician (or immediate family member) has a financial relationship with the entity performing the DHS.  On March 30, 2020, CMS announced a number of Stark Law waivers to help put “patients over paperwork” and allow certain referrals and submission of claims that would ordinarily violate the Stark Law.  The waivers include: paying below fair market value for rent, equipment and services; loans between healthcare providers; providing free benefits to hospital medical staff; and increasing the number of beds at physician-owned hospitals.  For physician group practices, medically necessary DHS can be furnished to a patient by a technician or nurse in the patient’s home contemporaneously with a telehealth physician service. Group practices can also furnish medically necessary MRIs, CT scans or clinical laboratory services from mobile units the group practice may rent on a part-time basis.

Supervision requirements are also being waived by CMS. Services requiring direct supervision by a physician or other healthcare provider can now be supervised virtually through real-time audio/video technology.  For services ordinarily provided “incident to” a physician’s service, a physician can enter into a contract with auxiliary personnel such as a home health agency, infusion therapy supplier, or entities that furnish ambulance services to provide care where the physician would bill for the service and the contractor would seek payment from the billing physician.  For non-surgical extended duration therapeutic services provided in hospital outpatient departments and critical access hospitals, general rather direct physician supervision will now be required.  CMS is also waiving the requirement for patients in the hospital to be under the care of a physician.  Hospitals can use other practitioners such as physician assistants and nurse practitioners “to the fullest extent possible.”

During the public health emergency, CMS is waiving national coverage determination (“NCD”) and local coverage determination (“LCD”) requirements for face-to-face visits for evaluations and assessments.  CMS is also waiving the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allowing telehealth visits instead.  If a NCD or LCD requires a specific practitioner type or physician specialty to furnish or supervise a service, the Chief Medical Officer or equivalent of a hospital or facility has the authority to make the staffing decision.

CMS is temporarily waiving the Medicare and Medicaid requirements for physicians and non-physician practitioners to be licensed in the state where they are providing services.  The healthcare provider:  (1) must be in enrolled in Medicare; (2) must possess a valid license to practice in the State which relates to his or her Medicare enrollment; (3) is furnishing services in a state in which the emergency is occurring in order to contribute to relief efforts; and (4) is not affirmatively excluded from practice in any State that is part of the emergency area.  The physician or non-physician practitioner can seek a waiver by contacting the Medicare Administrative Contractor (“MAC”) for the geographic area.  This waiver allows physicians to bill Medicare for services provided outside of their state of enrollment.  However, it is important to note that this CMS waiver does not waive state or local licensure requirements.   CMS is also allowing practitioners to provide telehealth services from their homes without reporting their home address on their Medicare enrollment and continue to bill from the currently enrolled location.  CMS is also allowing currently opted-out practitioners to terminate their opt-out status early and enroll in Medicare.