“Incident to” services paid for by Medicare have been a hallmark of the program since its inception.  Back in the early 70s, the principle of paying for those services of auxiliary personnel in the physician office as “an integral although incidental part of the physician’s personal professional services” was addressed in two paragraphs in the Carrier’s Manual. Today it is the subject of 9 conditions set forth in regulations with 8 definitions underlying its meaning.  Failure to conform with “incident to” requirements has been the basis for multiple False Claims Act cases continuing to the present. Still further, understanding what it permits is essential to compliance with Stark internal compensation requirements to qualify as a group practice.  In our most recent AGG Note, “The Not So Incidental “Incident To” Rules” we elucidate the conditions that pertain for compliance, explain the significance for Stark purposes and also debunk some myths about whether the government can actually enforce based on failure to comply with the rules.

Many non-lawyers confuse the effects of the Stark statute as distinct from the Anti-kickback Statute (AKS). Both can be the basis for false claims, but they aren’t even in the same Titles of the Social Security Act. Stark is a strict liability statute which means intent is irrelevant to its impact. Your motivations can be pure as the driven snow and you can still violate the law. To violate the AKS, however, the acts must be willful or with reckless disregard of the law. Stark is Medicare only, physician referrals only and about specific services only.  AKS is far broader, touching everyone on the food chain of federal health care program payments.  In her crisp video for Darshan Talks Unpacking the Hype Around Stark Law Issues for Pharma | Alice Gosfield - YouTube] Alice clarifies the distinctions and how to begin analyzing whether problems exist under either law, with, at the end, some specific observations about pharma and research effects. This is useful to anyone who has to deal with either of these critical statutes.

Since the early 2000s, electronic health records (EHR) software has become a central aspect of health care.  But as technology marches ever onward, and yesterday’s state-of-the-art hardware becomes today’s obsolete junk, many health care providers find themselves needing to change their EHR software. In “Switching EHRs: Common issues and lessons learned”, Dan examines how such changes implicate a range of legal issues, including preservation of records for HIPAA, medical malpractice, and compliance considerations, end-user license agreement quirks that may complicate transitions from one system to another, and practical and logistical problems associated with staging the adoption of new software.

Alice has been working on physician compensation issues throughout her career. We both address these issues as they arise today in a far more complex environment than many years ago.  Stark rears its ugly head here too.  In the teleconference, “Avoiding Modern Physician Compensation Pitfalls”, Alice explores the varying sources of revenue which provide the funds from which physician compensation can be made in any practice. She elucidates the confounding Stark regulations which apply to both productivity and profit sharing payments, and considers how to address audits as well as potential voluntary repayments in the context of compensation. This brisk presentation includes a 12 page substantive handout.  She has also addressed these issues in Family Practice Management in “Pitfalls to Avoid in Physician Compensation Models”.

The No Surprises Act is actually rather full of surprises.  Its scope is far broader than many realize. In “Clarifying Questions About The No Surprises Act”, Dan explains the types of providers, practitioners and settings to which the law applies in its intention to help patients understand their financial obligations when they obtain services from out-of-network providers. He confronts the law’s approach to specific obligations related to notices, consents, disclosures, and good faith estimates. He explicates the differences between “convening providers” and “co-providers” and their different duties. This teleconference is accompanied by a 14 page substantive handout and includes practical guidance.