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PUBLIC HEALTH EMERGENCY

OIG Temporarily Waives Anti-Kickback Restrictions for Certain COVID-19 Physician Arrangements

As it previously did with the Stark Law, the OIG is temporarily loosening Anti-kickback Statute (AKS) restrictions to clear the way for health care arrangements during the COVID-19 emergency that would be problematic in times of normalcy.

Public Health Emergency (PHE) Waiver Rules

During a PHE, the OIG has discretion not to impose penalties on remuneration arrangements that violate the AKS. On March 30, 2020, the OIG announced it was exercising that discretion by issuing what’s called Blanket Waivers for such arrangements. The message: Right now, delivering COVID-19 diagnosis and treatment is more important than the need to avoid arrangements offering remuneration in exchange for Medicare and other federal referrals. Things that labs may be allowed to offer, pay or provide referring physicians (and/or their immediate family members) during the emergency include, among other things:

  • Remuneration for services or items at above or below fair market value;
  • Free or below fair market value rent for leased office space or equipment, e.g., giving a physician free telehealth communications equipment;
  • Hospital medical staff incidental benefits above the usual limits;
  • Nonmonetary compensation above the usual limits;
  • Loans at below fair market value interest or at terms not offered to non-referral sources; and
  • Referral by a physician in a group practice for medically necessary designated health services furnished by the group practice in a location that doesn’t qualify as a “same building” or “centralized building.”

Eligibility Criteria

To qualify for the Blanket Waiver, providers must act in good faith and the arrangement must be purely for COVID-19 purposes, which 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 COVID19;
  • Securing the services of physicians and other health care practitioners and professionals to furnish medically necessary patient care services, including services not related to diagnosis and treatment of COVID-19, in response to COVID-19 outbreak in the US;
  • Ensuring the ability of health care providers to address patient and community needs due to COVID-19 outbreak in the US;
  • Expanding the capacity of health care providers to address patient and community needs due to COVID-19 outbreak in the US;
  • Shifting the diagnosis and care of patients to appropriate alternative settings due to COVID-19 outbreak in the US; or
  • Addressing medical practice or business interruption due to COVID-19 outbreak in the US to maintain the availability of medical care and related services for patients and the community.

Takeaway: Should You or Shouldn’t You

The Blanket Waivers apply automatically if the arrangement meets the criteria and you don’t have to get pre-review and clearance from the OIG. However, the OIG reserves the right to review any arrangement and impose penalties if it determines that it doesn’t satisfy the requirements. The OIG is also willing to issue an Advisory Opinion if parties do want a green light before entering into the arrangement.

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