QUESTION:
I see that you have a new podcast that somehow the Stark and Anti-Kickback Statute (“AKS”) have been amended to address how a hospital can assist a physician suffering from burnout.  What do Stark and the AKS have to do with how a hospital and its medical staff can assist a physician in distress, and how did that happen?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Thank you for the opportunity to plug our new podcast entitled “Don’t Get Burnout from Your Wellness Program.”  While the podcast will provide more detail, here are the highlights.

The Consolidated Appropriations Act of 2023, which raised the debt limit, added a number of other provisions including a new Stark exception and a new Anti-kickback safe harbor on Physician Wellness Programs.  These new sections of the Social Security Act will allow hospitals and the other named types of facilities to incur the expenses required to send physicians on their medical staff to a Physician Wellness Program as defined in the statute under the conditions stated in the new exception/safe harbor.

We should also mention that a separate section of the Consolidated Appropriations Act directed the OIG to consider a new safe harbor, but don’t be thrown off by the title of this section which references something called “contingency management interventions.”  If you look beyond the title of this Section to its text, you will find that Congress is directing the OIG to consider adopting a new safe harbor on “contingency management compensation.”  There is no guarantee that the OIG will do anything other than consider a new safe harbor.  However, if adopted and if reasonable (which is a BIG IF) this new safe harbor may be helpful in a number of settings.

But I digress, with regard to the Physician Wellness Stark Exception/AKS safe harbor, it is helpful to see Congressional recognition that physicians are suffering from burnout and other behavioral health problems and that a hospital can provide the assistance described in the exception/safe harbor without violating the Stark law or the AKS.  However, as discussed in the podcast, that assistance must be provided in the manner described in the statute, which is not onerous, but does require a certain amount of process, such as having a written policy adopted in advance by the board.

On the other hand – who would have thought that a hospital providing this type of assistance to a member of its medical staff in need of Wellness services raises a concern under Stark or the AKS???

The fact that Congress felt the need to adopt this exception in order for a hospital to provide this type of assistance could be used to raise a question as to whether it violates Stark or the AKS if a hospital pays to send a member of the medical staff away for training or for a medical condition that is not expressly covered by the exception.  Should that occur, it will not be difficult to find another exception that applies – nevertheless don’t be surprised if medical staff practices that were taken for granted in the past are now questioned.

Also keep in mind that there is a broad exception under both laws for an employment relationship.  While the new Stark exception/AKS Safe Harbor could be used for an employed physician, it is not needed in that situation – you could rely on the employment exception to Stark and the AKS bone fide employment statutory exception and safe harbor.

For more insights on what is, and what is not, covered by this new law, check out the podcast referenced below.  If you still have any questions about this issue, please feel free to e-mail me or Dan at Hcasale@hortyspringer.com or Dmulholland@hortyspringer.com.

If you want more detail on compliance with the False Claims Act, AKS, the Stark law, the intersection of medical staff and employment law, and much more, consider joining Dan Mulholland, Henry Casale and our newest faculty member – Hala Mouzaffar – in Phoenix November 16-18, 2023, for our next seminar.