Navigating the Stark Law with Medicare/Medicaid Services

In compliance with the Stark waiver, many practices that provide diagnostic services overlooked the Anti-Markup Payment Limitations (the AMPL”) regulation tat prevents how much health care providers can inflate prices for such services. Practices that have not complied with the AMPL may find themselves recipients of Medicare overpayments subject to repayment. The Center for Medicare & Medicaid Services (CMS) has approved a 90-day extension to the waiver of the Stark Law’s in-office ancillary services exception for certain COVID related services. This means that providers may continue to provide COVID related services at any location without violating the Stark Law.  The waiver applies to reimbursed “designated health services” as defined by the Stark law, including radiology and pathology services performed on or after October 1, 2019.​​

If you provide services that require a physician to be present (or unqualified nonphysician), or that involve the application of clinical judgment or medical decision making, you must meet the AMPL, or face stiff financial penalties. The AMPL requirements also apply to services provided by other practitioners, such as nurse practitioners, physician assistants and dentists. While ensuring 75% of professional services are performed by the practicing physician is not difficult for most billing practices, meeting the site of service test can be difficult. This especially seen in situations where there are more than one site at which performing physicians may do the same service. Therefore, it’s important to understand how the AMPL rules apply to your practice.

The Centers for Medicare & Medicaid Services (CMS) has confirmed that its waiver of the Anti-Kickback Statute (AKS) due to the COVID pandemic is not affected by the Stark Law Physician Self-Referral prohibition. Specifically, CMS stated that: “The Stark Law Physician Self-Referral prohibition and AMPL requirements are in full force and effect” at this time. Consequently,in order to avoid any potential penalty or fine under the AKS and/or COVID site of service restriction, practices should take advantage of this opportunity to review their policies, procedures and contracts with any other providers who provide services at their office location.

References:

https://www.jdsupra.com/legalnews/caution-compliance-with-covid-19-5987803