By Kim Stanger

On March 30, 2020, CMS opened the way for hospitals to provide additional compensation and/or support to referring physicians during the COVID-19 pandemic by waiving the enforcement penalties under the federal Ethics in Patient Referrals Act (“Stark”). (See https://www.cms.gov/files/document/covid-19-blanket-waivers-section-1877g.pdf).

I. Stark Law Prohibitions.

Stark generally prohibits physicians from ordering or referring certain designated health services (“DHS”) payable by Medicare or Medicaid to a hospital or other entity with which the physician (or a member of the physician’s family) has a financial relationship unless the arrangement is structured to fit within a regulatory safe harbor. (42 U.S.C. § 1395nn; 42 C.F.R. § 411.353). Those safe harbors may be difficult to satisfy in the COVID-19 crisis but for the CMS waivers. Continue reading →

By J. Malcolm (Jay) DeVoy and Lisa Carlson

On September 26, 2019, the Centers for Medicare and Medicaid Services and Department of Health and Human Services published commentary and its final rule affecting how hospitals, including critical access hospitals (“CAHs”), and home health agencies (“HHAs”) must plan and document the discharge of patients in order to avoid re-admissions.¹ CMS published this new rule with commentary in the Federal Register on September 30, 2019.²

In order to “empower patients to make informed decisions about their care as they are discharged”³ from hospitals or transferred from HHAs to the post-acute care (“PAC”) setting, CMS adopted this final rule under the Improving Medicare Post-Acute Care Transformation Act (“IMPACT Act”) of 2014. CMS’s final rule is predicated on hospitals, CAHs and HHAs using the quality and resource use information CMS gathers from HHAs, skilled nursing facilities (“SNFs”), inpatient rehabilitation facilities (“IRFs”), and long-term care hospitals (“LTCHs”) under the IMPACT Act. Hospitals, CAHs, and HHAs must now provide this information to patients and their caregivers so that they may consider it when selecting the PAC provider or services they will utilize to continue their treatment. Continue reading →

By Cory Talbot

Earlier this month, the Centers for Medicare & Medicaid Services (“CMS”) issued draft “Guidance for Hospital Co-location with Other Hospitals or Healthcare Facilities” (the “Draft Guidance”) intended to change earlier CMS guidance, which prohibited hospital co-location with other hospitals or healthcare facilities. The Draft Guidance plainly states that “[h]ospitals can be co-located with other hospitals or other healthcare entities”¹ and is designed to clarify how CMS and surveyors “will evaluate a hospital’s space sharing or contracted staff arrangements with another hospital or health care entity when assessing the hospital’s compliance with”² the Medicare Conditions of Participation (the “CoPs”) for shared space, contracted services, and emergency services.³ Continue reading →