CMS adds physician owner waiver for Stark law

CMS added a Stark law waiver for physician owners of independent free-standing emergency departments that served Medicare patients during the COVID-19 pandemic, according to an article written by three attorneys from the firm McDermott, Will & Emery and published in Lexology on June 2. 

The waiver applies retroactively and is the first time CMS has modified its blanket Stark law waivers since 2020, according to the report. Independent, freestanding emergency departments will now receive similar protections to ASCs, which were also able to convert to hospitals during the pandemic. 

The waiver applies to referrals by a physician owner of a hospital that was an independent, freestanding emergency department that meets the following criteria:

1. On March 1, 2020, the department was licensed as an IFED. 
2. The hospital enrolled in Medicare as a hospital during the public health emergency. 
3. The hospital did not increase the aggregate percentage of physician ownership. 
4. The hospital meets Medicare participation conditions. 
5. The hospital's Medicare enrollment is consistent with the COVID-19 pandemic plan of its state.