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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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The Centers for Medicare and Medicaid Services (CMS) has issued blanket waivers of the Stark Law during the COVID-19 public health emergency, retroactive to March 1, 2020, to ensure that health care providers and facilities can meet the challenges of caring for patients, and will not impose sanctions for good faith violations as long as CMS does not determine that there was fraud and abuse. The <a href="https://www.cms.gov/files/document/covid-19-blanket-waivers-section-1877g.pdf">blanket waivers</a> apply only to financial relationships and referrals that are related to the COVID-19 national emergency. The remuneration and referrals must be solely related to COVID-19 purposes, defined as:

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The CMS guidance lists 18 different waivers and examples of how the waivers can be applied (starting on page 3). These lists (see the link above) can be consulted for contemplated arrangements that might not otherwise meet a Stark exception during the COVID-19 emergency. CMS advises that parties utilizing blanket waivers maintain records relating to the use of the blanket waivers.

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The Office of Inspector General (OIG) has not published waivers of the Anti-Kickback Statute, but the OIG issued a message on March 30 acknowledging the challenges faced by the health care industry during the emergency and that for any conduct during the emergency that may be subject to OIG administrative enforcement, OIG will carefully consider the context and intent of the parties when assessing whether to proceed with any enforcement action.

Please let us know if you have any questions or would like to apply any of the waivers to a specific arrangement.

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Cori R. Haper 937.443.6856 <a href="mailto:Cori.Haper@ThompsonHine.com">Cori.Haper@ThompsonHine.com</a>

Rebeccah C. Raines 937.443.6806 <a href="mailto:Rebeccah.Raines@ThompsonHine.com">Rebeccah.Raines@ThompsonHine.com</a>

or any member of our <a href="https://www.thompsonhine.com/services/health-care">Health Care</a> practice group.

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/CMS_Issues_Blanket_Waivers_of_the_Stark_Law.pdf

CMS Issues Blanket Waivers of the Stark Law During the COVID-19 Public Health Emergency

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