Episode 45b: Increased Flexibility During COVID For Practices & Physicians w. Anu Murthy, Esq.

Apr 27, 2020

This Episode

Interview w/ Anu Murthy

You Will Learn

– The Genesis of Stark laws and why practitioners need to be aware of them.
– The importance of practices continuing to keep records even when they decide to avail waivers.
– Anu’s opinion on whether the CMS Stark waiver will work, or if it could do more harm than good.

Resources & Links

In today’s episode, I’m talking with attorney, Anu Murthy, about some of the challenges, as well as the opportunities, afforded by new CMS regulations related to the coronavirus outbreak. We’re talking about new rules that impact both practice owners and physician employees. While we’re discussing things in the context of anesthesiology and pain management, these concepts will have broad applicability since we’re discussing legal concepts.

Justin (00:04)
Today I’m talking with attorney, Anu Murthy about some of the challenges as well as the opportunities afforded by new CMS regulations related to the coronavirus outbreak. We’re going to talk about new rules that impact both practice owners as well as employee physicians and while we’re discussing things in the context of anesthesiology and pain management, these concepts will have brought applicability since we’re discussing legal concepts today. It’s important to note that the following interview is for informational purposes only. We’re going to be discussing legal topics, but nothing in this interview should be relied upon as legal advice. Any specific questions about your situation should be directed to your qualified attorney. As always, thanks for tuning in. Hello and welcome to this episode of the anesthesia success podcast. This week I’m very pleased to be joined by a special guest attorney. A new Murphy, a new is a healthcare attorney with a diverse background representing healthcare systems, physician groups and practices, individual physicians as well as physician recruiting companies. She’s joining me today to discuss the implications of the changing legal landscape for physicians as it relates to providing care during the coronavirus and new. Thanks a lot for joining me today.

Anu Murthy (01:33)
You’re welcome, Justin. Thank you for having me. You’re right. This is a very topical area to be talking about today. Let me start off by telling you a little bit about myself. As you mentioned, I am a healthcare attorney with about 25 30 years of experience. And this is the ecosystem I know is married to a physician for 27 years and I have several dozen physicians in my immediate family. So I live and breathe health care and health care law.

Justin (02:05)
Did you say several dozen in your immediate family?

Anu Murthy (02:08)
Oh, Oh yeah, yeah. And yeah, you should come to one of our Thanksgivings there. They’re very safe place to have a heart attack. Oh my. It’s a safe place to have a heart attack, not always a safe place to be. An attorney though you know, physicians and attorneys don’t always mix. And, and especially when I was, when I ventured into what my, what my brother or the anesthesiologist called the dark side, I went to, I went in house and worked for several different health care systems. So I was on the employer side, the system side, that illustration side. And I did that for about a decade and couple of months ago. Ironically I decided that I would leave that sphere and go back to doing what I love the most, which is representing advising and physicians as opposed to being on the employer systems side. Nothing wrong with that side, but that might, my true love really is, is helping physicians. So, so here I am, I’m relaunching a very specialized niche, you know, area of practice. And now we’re at home in the midst of this pandemic. So it’s given me a lot of time to, to read and work with clients remotely. But it certainly has put a little bit of a damper on my business growth plans.

Justin (03:30)
Sure. Well, I’m grateful for your time to join us here today. Thank you. And I’m looking forward to learning more about the stark laws. So you know, our physician listeners are probably have probably varying degrees of exposure to what stark is and means. So talk a little bit about the background behind maybe the Genesis of the stark laws. What does it mean today as far as position, practice, do’s and don’ts?

Anu Murthy (03:51)
Okay. So again, stark laws you mentioned is almost a four letter word with most physicians and, and rightly so because it, it presents a number of barriers and obstacles to the practice of medicine as we see it today. And I’ll go into a little bit about, about why that is. But let me tell you. So stark started in 1988 it was called stark law because it was introduced by a representative Pete stark, a Democrat from California. And it was really intended to prohibit the exchange of anything of value to induce or reward the referral of business services. So it’s also called the physician self-referral law. So it, it prohibited a referral bio physician of a Medicare, Medicaid patient to an entity that provided DHS designated health services. If the physician or immediate family member had a financial relationship with that entity and sorted out with just labs. But it’s really has, you know, become much more pervasive and almost any financial relationship that a physician has with a, with an entity that provides designated health services is under the purview of stark. It’s, it’s become you know, very burdensome statute to comply with it. It doesn’t reward innovation and it really doesn’t speak to how physicians are practicing medicine today.

Justin (05:29)
Interesting. So for patients who have commercial insurance or something with, would that still apply to them or is that maybe a different set of rules?

Anu Murthy (05:37)
It’s a different, it’s a different set of roles and so stark and it’s sister legislation, the anti kickback statute. So SA stark is a civil strict liability. No proof of intent is required. So you can, you can basically implicate stark even if you don’t intend to implicate start. So it’s a, it’s, it’s very, very broad. The anti kickback statute is, has criminal and civil penalties. So, you know, you can, you can go to jail if you violate the anti kickback statute.

Justin (06:15)
Got it. So talk about what does this mean? You know, maybe it’s give us a couple patient care scenarios to, to explain how a doctor might bump into these rules.

Anu Murthy (06:26)
Well, you know, again, any time that a physician is referring to an entity that he or she or their immediate family member has a referral has an ownership basis. So you know, that’s probably the, the easiest you know, most common example. But physician compensation arrangements are often under stark issues as well. We’re talking about fair market value, you know, things like that. So that’s a, again those are, those are examples where stark is implicated on a, on a daily basis.

Justin (07:04)
Okay. So as far as fair market value, you’re talking about fair market value of like a physician’s time and maybe like a consulting arrangement or something?

Anu Murthy (07:13)
Ah, absolutely. Or, or I mean just compensation in terms of, you know, if they’re contracted with a, with a health system, you know, how much can be paid to that particular physician.

Justin (07:24)
Got it. So the stark law, just so I’m clear, the stark laws would govern either give a ho probably not a hard cap, but some sort of reasonability test to the maximum amount that a doctor could make in a certain role in our health system.

Anu Murthy (07:37)
Yes. Because you, you don’t want it to be seen to induce referrals to the health system.

Justin (07:43)
Right. Interesting. So I’m just wondering how this plays out kind of in the real world. If we had, for example, you know, an orthopedist or I think pain management would, could potentially have a similar vibe where if you have a physician who does some procedures, who has a really good reputation, who by virtue of them being wherever they are, would bring patients to that site of service. How it seems like practically, I can understand what you’re saying, but functionally I’m wondering how you can divorce these two things, right? Like a doctor would be more valuable to an institution if they would bring with them name recognition and credibility. And with that probably like a bunch of research attention and patient volume. So I’m just wondering like how have you seen organizations try to sort of toe this line like, Oh, we really want Dr. Smith, he’s excellent, he’s got a great reputation. He is like the linchpin of like orthopedic procedures in this city for this type of thing. And if we get him at our institution, we know that we’re going to, it’s going to be a great PR thing. We’re going to be able to do more research and you know, have a higher profile and probably have more patients come in the door. Like I can see that being a very natural consequence of getting in a,

Anu Murthy (08:56)
An acclaimed physician. How, how how would this apply in that kind of situation? I’m wondering, or is that sort of murky? It can be Marquis, but what hospital systems and employers do in order to calculate compensation is they typically use surveys such as MGMA is a big one. And so when I was in the physician recruitment world and we really wanted certain candidate you know, top neurosurgeon, orthopedic surgeon, and we were trying to get to the top of the amount for compensation, we would look at MGMA, we would look at a couple of other compensation surveys and get a fair market value recommendation from those from those surveys. And then, you know, typically if I wanted to go to the up to the 90th percentile of MGMA, I’d be okay. Anything beyond that would sometimes require board approval from the hospital board.

Anu Murthy (09:59)
So no, it comes up, it comes up fairly often, especially in those hard to recruit specialists, you know, not so much in, in, in primary care that definitely in in areas rural areas specialty shortage areas, it comes up pretty often. So surveys are a great way to go. But, so, you know, I, and I just wanted to kind of get back to, to stark. Stark started out in 1988 and over the course of, you know, the past 30 years there, there haven’t been a lot of changes. To start, there is a start to, I think that was back in 1993 and then some more changes in 2007 actually I think in 2007 the changes were related to CRNs so that may be of interest to you. I think it was the supervision of CRNs that seem to be addressed at during that time.

Anu Murthy (10:55)
Interestingly though, last October a CMS came out, centers for Medicare and Medicaid services came out with proposed new rules that were going to reform stark and the anti kickback statute. And it was really interesting because they, they had put out a request for information the previous year and everybody and anybody who is part of health care, whether it’s the, you know AMA or specialty colleges the association of anesthesiologists, et cetera, everybody sent comment letters to CMS saying, well, here’s how we want stark change because we are in a new era of telemedicine. Of using more ancillary providers such as CRN, AEs, physician assistance et cetera, and value based care. I, you know, it’s my understanding that anesthesiologists and pain medicine specialists may not do as much value based care as primary care doctors for example. So this, but they are part of teams that provide value based care.

Anu Murthy (12:04)
And so CMS came out and proposed these rules saying, okay, we’re going to open these these areas up. We’re going to bring stark into this new world of of telemedicine. And the ability also for referrals to happen between these in these previously prohibited relationships because again, anesthesiologists and pain medicine doctors and orthopedic surgeons, they may be part of bundled payment programs and that’s a type of value based care and those would have to pass muster under stark every single time that they went in went into contracts. So CMS basically said last fall, all right, we are going to open, open up to value based care. And the more risk that you take as a practitioner, as a provider, the less oversight that stark will have on your practice. So that’s a little simple way of putting it, but it’s basically, you know, rewarding those practitioners that are embracing risk.

Justin (13:08)
Got it. Okay. And so in light of the complexity added to our healthcare system and the strain by Corona virus, how, how have practitioners bumped into stark? How have they found it to be like restrictive and in what ways is that being examined right now?

Anu Murthy (13:29)
Well, I’m going to actually flip that question if you don’t mind. So I think what happened was it was unprecedented in, in our history in terms of CMS coming out, the administration coming out and saying, okay, we are going to help you doctors in order to keep providing services to keep the lights on. So we’re going to provide some blanket waivers because historically CMS only issued stock low waivers on a case by case basis. So these blanket waivers that were issued about a couple of weeks ago, they’re, they’re really unprecedented. And so what does that, what does that mean? They, they, they’re national in scope. So, you know, every, every practitioner in the country, if they are, you know if they [inaudible] Medicare essentially are, are impacted and they’re gonna remain in effect during the period of the national emergency. And there’s, there’s 18 waivers that were, were issued and there were five purposes.

Anu Murthy (14:47)
Mmm. Under these waivers. So these waivers only apply to financial relationships and referrals that are related to the national emergency. That is the coven 19 outbreak in the United States. Okay. So the purposes, the five purposes, they seem a little narrow at first. Like the very first one says it’s, it, it has to be related to the diagnosis or medically necessary treatment of covert 19. For any individual, whether or not the individual is diagnosed with a confirmed case of code 19. Well, you and I know there’s a lot of doctors out there that are, that are unfortunately because of the ban on electric procedures. They’re not practicing medicine. They’re not treating individuals that have you know, coven or you know, suspect at tough coven. But if we look down to the, you know, down the list of list of purposes, Mmm. They do say that what can happen is you can avail yourself of these waivers to start if the purpose is to address a medical practice or business interruption due to the coven 19 to maintain the availability of medical care, unrelated services for patients on the community. So basically if you are practice is impacted your business that’s interrupted by coven 19, which, you know, arguably every single physician in the country you know, falls under this, then, you know, this is a very, very broad, a very broad provision.

Justin (16:30)
Got it. I’m, I want to try to put this in practical terms just so I can understand if we had a previously prohibited referral self-referral, like my brother owns a, I mean, in this example, maybe he, like he’s been trying to start a telemedicine company or like create a platform where we can have secure HIPAA compliant communication between physicians and patients. And you know, that’s a, a thing that exists that he’s been working on. And we may be talk because I think, Oh, you know, this could have potential but I can’t use it in my practice because of stark. If there’s this blanket waiver that you just described and I think, well this previously prohibited type of referral under the stark laws, as long as I can find grounds for this type of referral under one of those five categories that you mentioned, this is no longer prohibited in the interest of accelerating patient care. Is that accurate or is this too specific?

Anu Murthy (17:29)
Can be, but you know, so we, we have to remember, so the, the waivers are only going to be possible and applicable until the end of the pandemic until the public health emergency is lifted. So if, if something was you know, subject to, to stark or anti kickback under, under those particular set of facts, unless they fit these, these parameters for this limited period of time, then I would argue that a new business probably would not be safe under these terms. But, you know, I think it’s something that he’s got to, you know, really look at it. You know, to a, to an attorney that is versed in, in telemedicine. And I, you know, I can, I can see the point, but I, but I don’t think that it would work that way. It really are talking about existing relationships, whether it’s you know, lease payments rent some compensation arrangements, you know, things like that. They, the, the goal is to keep physicians in practice and the goal is to make sure that you know, again, looking at the cares act in broadly, right. You know, we’ve already had that first infusion of a bolus of cash that has come to many physician practices already. I don’t, you know and so that’s, there, there is also, as of today, I know there’s a second round that hopefully that the administration is going and Congress is going to agree upon to have even more money that’s sent to practices.

Justin (19:18)
Okay. Right. Yeah. I’m very interested to see in a lot of different ways how they continue to sort of move the target as far as total funding for the under the cares act.

Anu Murthy (19:28)
Well and can I just, can I just like to say one more thing? I think it’s really important that that practices that do decide to avail themselves of one of the waivers and we can get into some specific waivers like you know, employment and office space and equipment rentals you know, things like that. But what I think is really, really important for practices to remember is that they’ve got to maintain some records. So even though they don’t have to, to reach out to CMS and, and say, Hey, I want to avail myself of this particular waiver, they, they still need to maintain records. They need to document that, you know, which covert 19 purpose. And again, it could just be that business interruption. So on a con contemporaneously basis because it’s not something that you want to go back and do afterwards.

Anu Murthy (20:19)
When CMS comes to you and say, Hey, you know what, we’re finally getting around to looking at a, at these waivers that you availed yourself of, whether it was reduced rent or increased comp, whatever it is. And we think that there could be fraud and abuse, you know, show us your records and it doesn’t have to be something, you know, very detailed or you know, CMS really hasn’t even provided the guidelines as to what exactly they’re looking for other than to record what purpose you are using. You know the, the waiver under you know, it’s really important maybe to have like a point person to handle all these type of arrangements and just make sure that you just, you know, you’re consistent in your documentation. Like for example, a health system. And, and my, my constituents are not health systems. They’re now individual physicians and physician groups, but a health system for example needs to make sure that if they are providing help to a certain physician that they do so consistently with, with all physicians that are similarly situated. So they don’t want to have a CMS looking at that situation and say, Hey, you know, you’re paying, you paid more to doctor a. But is that because cause you really needed help during the pandemic or was it because dr a is, you know, your biggest referral source, so we still have to be careful.

Justin (21:42)
Right. Can you give maybe a couple more examples of those categories you mentioned and what proper navigation of the waiver may entail?

Anu Murthy (21:53)
Sure. So I think one of the, the waivers that, that, you know, your clients, my clients may be looking at is the waiver that permits payments by an entity to a physician that is above or below fair market value for services personally performed by the physician. So for example, hazard pay or restructuring, procedure based compensation methodologies. And that’s a big one for for surgeons and anesthesiologists and anybody. But primary care, I mean, you know, they’re, they’re, they then unable to to, to do those elective surgeries, those electric procedures. So this is a, this is a big one, but again, you have to really, really be very careful in the methodology that’s used by the health system to provide that, that pay, that compensation to the physicians involved.

Justin (22:50)
So as an example with that one, you know, the hazard pay situation, what you’re saying is, you know, traditionally we would be governed by MGMA data to, to sort of extrapolate a reasonable compensation level for physicians of certain specialty in a medical practice for a period of time. We may consider an opportunity to give them hazard pay, which may be above and beyond what we would traditionally consider to be reasonable. And as such, we would receive protection under this rule under this waiver for as long as this period of national public health crisis exists, a per CMS that we can, we’re not going to be penalized for that as long as we’re keeping proper records. Is that accurate?

Anu Murthy (23:31)
I think that’s accurate. I think too that it’s important for when that type of pay is, you know, above fair market value. I think it’s still important for there to be a reasonableness standard that will be applied. So it can’t just be, you know, through the roof type of compensation. So, you know, again, because you know, CMS will, we’ll come back and look at you for any type of fraud and abuse.

Justin (24:00)
Sure. Yeah. I don’t know what you’re seeing out there in new, but I, I’m certainly not, most of the physicians I’m bumping into right now aren’t saying Holy cow, money’s falling out of the sky. It tends to be a little bit more the opposite of there’s massive system disruption. Ors aren’t functioning like your procedures have all been shut down. Anesthesiologists are trying to you know, turn into intensivists exclusively and everything is economically disrupted the way it’s clinically disrupted.

Anu Murthy (24:27)
Absolutely. Absolutely. And you know earlier last week I know that the American society of anesthesiologists sent a secretary ASR of health and human services a letter asking for some very specific asked for payment for loss of work via grant grant a process. And he references, or I’m sorry, they referenced the, the association references that payment to be issued for each anesthesia professional. You know, is pegged to MGMA. They’re also, you know, and that the intent is to revive physician practices that are facing these economic challenges due to postponement and cancellation of non essential services. I mean, there’s just been a huge, as you know, decline in, in revenue. So, you know, and what, you know, the other thing that they’re looking at is some changes in, in an increase in reimbursement for certain CPT codes for ventilation management and intubation, et cetera.

Anu Murthy (25:31)
So they’re asking for a 20% add on to that. And I think those are all pretty reasonable. Asks, Mmm. By the association of anesthesiologists. And so I, I don’t know what your thoughts are or what, you know, what your clients are saying, but this isn’t meant to make people whole, but it’s, but if it could provide some relief so they can stay in business so that they could keep their staff working I’m, you know, I hope that the, the secretary and the administration really look upon this because, you know, there’s pent up demand, there’s going to be lots of demand for surgeries, et cetera in the coming weeks already in some States that are opening up, as you know secretary of Irma came out with with that plan to start opening up phase one. And I think Ohio, Georgia, Texas are already planning to carefully, cautiously reopen.

Justin (26:32)
Yeah. I’m curious in your opinion, and I’m not going to hold you to this, but I want to know just kind of your shoot from the hip, what you think. And I have, I would say like the business corollary to this w with regards to the cares act in 349 billion allocated for small business, which has been very challenging to navigate. And obviously, you know, medical practices, many of them are small businesses or surgery centers would fall into that umbrella. But as far as the, the, the CMS stark waiver and its intended purpose of making you know, access to care more readily available and helping physicians economically in some targeted ways. Do you think that, do you think that this is gonna work or help or be effective to that end? How and where can this go wrong or, or might it or has it,

Anu Murthy (27:19)
We’re so early into it, Justin, that I don’t know if things have gone wrong yet. What I’m getting from my clients are questions about, okay, well, you know, my health system is offering me reduced rent at this time. Is that, is that OK? You know, what else should I be looking at? This is a new lease or my health system or my employer is, you know, withholding my productivity bonus, you know, things like that. So those are the, those are the issues that I’m seeing right now. I think that the blanket waivers [inaudible] came down the pike in such a, you know, unprecedented way that the lawyers, including myself, were still trying to figure out, well, what’s the best way for our clients to avail themselves of these waivers? And going forward you know, what kind of a criteria are going to be looked at, are our clients going to get in trouble for availing themselves of this?

Anu Murthy (28:22)
You know, there’s almost a little bit of a reticence and fear to even enter into some of the agreements. And which is, which is sad because I think that there are some, you know, business cases definitely for compensation methodology to be changed and altered during this time. Even if it’s just for a temporary basis cause we have to remember the, the employment agreement or contract, it’s still a contract, you know, it’s still valid. Everything else under that contract is still, you know you’re still going to be held to, and one of the things that [inaudible] popping up a lot for, you know, in my world are the rental charges that a physician or physician practices pay for space or equipment. The waiver is allowing it to be under fair market value. I don’t really tell you how much under fair market value.

Anu Murthy (29:21)
So you know, I think that there’s an opportunity there to help with some cashflow for many practices. And I think that you can even maybe use this as a opportunity, you, you know, longterm renegotiation of the lease. Because the other thing that I think we’re all going to face is, well fair market value prior to March 30th is going to be really different. Going forward. I mean we may see fair market value of leases and compensation agreements really drop and you know, that’s, that’s kind of frightening. But it also could provide some great opportunities.

Justin (30:08)
Yeah. Can you give a couple more specific examples or ideas maybe of based on the, the focuses that the communicated sort of pillars of the, the, the stark waiver ways that physicians can proactively maybe recommend to their health system or whoever, you know, they pay the rent to or whoever they lease the equipment from. Are there other opportunities where they could say, Hey, like person on the other side of this exchange of money, we have an opportunity here under the stark waiver to do something that could be mutually beneficial.

Anu Murthy (30:40)
Yeah. So we talked a little bit about it, you know the actual employment contract, the personal services, contract and compensation. Definitely office space and equipment rentals are a way to again to look at. So purchase purchased items or services from the entity from the health system is another potential area that could be done at below fair market value. So I’m only talking in, in the context as I know you are of the, of the physician, not of the, of the entity because it goes both ways. The entity also could amend the lease, the lease payment that they are paying to a physician group requesting below fair market value. So it works both ways. But we’re just talking about physicians loans right now. I mean you know, the blanket waiver, it permits loans to a physician or physician group at an interest rate that is below fair market value and that, so the caveat is on terms that are unavailable from a disinterested lender. So for example hospital can loan money to an anesthesia group from which it has an exclusive contract to cover the physicians lost income due to the cancellation of elective surgeries to ensure that the hospital has anesthesia services needed for Govan 19 patients.

Justin (32:04)
So this sounds like a great opportunity for hospital based private anesthesia groups. If the hospital has a little bit more at which, frankly, they’ve, I mean, even many hospitals right now are struggling for the same reason the anesthesia groups are, but they may have a little bit of a more robust balance sheet to be able to say, Hey, for a period of time, we’re going to loan you some money to float you to, to allow you to continue to provide services and, and we’re, we’re gonna be protected under stark, especially if those are, sorry, under the stark waiver, but especially if those groups may be applied for the paycheck protection under the small business the small business administration and either got caught up in, you know, administrative purgatory or whatever, and for whatever reason didn’t get any money on that side of things.

Anu Murthy (32:49)
Yeah. And that, and that kind of brings me to another issue. You know, one, you have to be really careful. The physician group has to be very careful to document the different streams of money that are, that are coming in. So we have that first bolus of money a cup you know, a week ago, last Friday. From CMS that was related to what your Medicare billings were from 2019. So you have that right. And then you’re, you may be also getting something under the blanket waiver, stark waivers from the, the hospital entity that you’re affiliated with. So there’s another stream there and there may be another stream of money that’s coming in from a small business and a paycheck protection. And then today you know, we, we may be missing it right now, Justin, but, but the Trump administration may be announcing another bolus of money.

Anu Murthy (33:41)
So you have to be really careful what you’re using the money for as well. So record keeping I think is, is extremely important. Again, not, not super complicated, but just to make sure that, that, you know, well, this money that the, that came to me from this source was used for this covert 19 purpose. So what happens though, for example, if you do get a loan from a hospital, and what happens when the waiver is end? I mean, does it, does it accelerate the repayment of the, you know, entire loan? You know, what are the loan documents? What do they say? Do they, are they meant to demand an immediate repayment when the emergency ends? What if the interest rate adjusts to fair market value at that point? You know yeah, there’s, there’s some, there’s lots of opportunities there.

Justin (34:34)
Yeah. It seems like another area in which this is like a ready fire aim situation just playing out in front of us the way that it’s very difficult to give away two point $2 billion in a very short amount of time in any sort of orderly fashion. And then when you layer onto that the complexities of public health and healthcare administration and all the different permutations of that, it’s, it’s a serious logistical challenge and there’s definitely part of the story yet to be written.

Anu Murthy (35:01)
And you know, another thing that your clients, and I know that some of my hospitalists and critical care clients have, have been able to avail themselves the under stark, there’s a cap as to how much a physician can be paid annually in nonmonetary compensation. And it’s about 423 $25 right now, which isn’t a lot, but that limit has been waived. So the hospital entity, the DHS entity can, can fund things above that annual for PPE, for supplies for CME. That’s related to coven 19 training. They can also provide the physicians with housing, with meals, childcare, transportation or provision of support personnel to physician offices. So there’s a, there’s, you know, that’s pretty significant. As well. I, I know that, that my brother it has been isolating is a critical, my other brother, not anesthesiologist was isolating from his family, which a lot of physicians are doing. And you know, he’s fortunate. He has a, he has an a, a little guest house on his property, but many physicians are checking into hotels, their Airbnbs. And so this is something that, that a hospital system and employer can reimburse the, the physician for. And I think that that’s very significant.

Justin (36:35)
Got it. Yeah, that’s a great point. I know of a new client the other day who I was talking to was one of our first calls and they were down the street, we were doing a zoom call and it was husband and wife and husband was at the hotel and wife was at home and we’re all here in the same city. But because of, you know, that self isolation there, they’ve decided to do that. So it’s, it’s a good note that that’s something that an employer can reimburse for a without running a foul of stark because of the waiver.

Anu Murthy (37:02)
Yup. And the other thing that in terms of employed physicians or contracted physicians, a hospital could potentially agree to pay an employed contracted physician based on their 2019 production. And that’s because, you know, because of the cancellation of elected procedures, if their comp was tied to if they had a base and then then you know, productivity component again, not to make the physician whole is my understanding, but you know, to keep the lights on, to keep moving forward and then having a true up you know, later on in, in, in the year. Because let’s face it, even with the pent up demand, right? I mean our physicians, the procedural is going to be able to just jump back in and, and you know, work 24, seven to make up for the, the lost productivity and associated revenues.

Justin (38:00)
So, yeah. So this makes me want, you know, this is, it’s like, it all sounds great. Like there’s money everywhere that we can request some of the stark waivers. But I think this, what I’m wondering as I’m hearing you describe these situations is what about sort of the entity system, hospital viability, financial strength. It’s one thing to say that doctors can get that without running a foul of stark. It’s another to say like, well, maybe the hospital doesn’t want to or can’t, or we’d love to pay you on 2019 production, but because there is no 2020 production, they don’t have the money to pay. And so even though it’s not illegal, the resources don’t exist. Is that something that you’re seeing?

Anu Murthy (38:38)
Not yet because they’re, you know, the first round of carousel funding hospitals got quite a bit of money and there advocating they’re lobbying for more under this second round, you know, and, and I think that it’s important to remember that again, the, the, the lifeblood, the of the hospital system are our clients, the physicians that admit and perform surgeries and provide the anesthesia services. So I think it’s [inaudible], you know, in hospitals, best interests to do whatever they can do to keep physicians you know, in, in business. So, yeah.

Justin (39:27)
Yeah, there’s a lot more we can say there, but we’ll

Anu Murthy (39:32)
Well, well, well, I will tell you one of the things that you and I talked about this a couple of weeks ago, [inaudible] was private equity. So private equity backed physician practices were excluded from benefiting from the cares act money. But what I, what I’m seeing and I’ve got a couple of transactions that are going on right now. Private equity activity is not going to cease going forward. They have cash reserves and you know, I think that what we may see actually is more private equity investment in primary care practices. And that [inaudible] be very good for our proceduralists clients as well because if private is primary care practices close, well, you know, referral streams also dry up. And so it’s going to be a very interesting, it’s like the wild West, honestly. I mean, and you know, and just going back to stark for just a minute, I’m, I’m really excited because CMS is supposed to come out with final rules for their, their proposed rules that they did back in October and we all were like, wow, these are so great, these new you know, enhancements and liberalization of, of stark. Now they turned that all on, on, you know, on its head and, and the waivers that we have now. Well why couldn’t some of these waivers be law going forward? I mean, why do we have to be constrained by things that were, that happened 30 years ago. You know, it’s a, it’s a different world.

Justin (41:05)
Absolutely. Right. And I think we’re going to ask those questions in a lot of different areas with Jayco and HIPAA and with oversight of CRNs in some cases where there’s just a lot of different places that right now the landscape is changing and the questions are going to be asked. Does it make sense to flip it back when the time comes or is this part of the new normal?

Anu Murthy (41:29)
Absolutely, absolutely.

Justin (41:31)
And new. Is there anything in closing you want that you haven’t been able to cover that you want to elaborate on a little bit?

Anu Murthy (41:36)
I think it’s really you know, it behooves everybody who is taking part in any type of cares that funding any type of stark waivers to just take a few minutes before entering into arrangements and write down, look at those purposes. The, the five purposes and you know, that very broad one about business interruption. Take a look at those purposes, look at the reading and have your counsel or other business advisor to you know, make a note of that. Make sure you have a point person who is you know, tracing back the way that the funds are used back to the purpose back to the stores so that if CMS comes knocking, you know, I don’t want any of our physicians to run a foul and you know, be carted off to jail or, or pay fines or anything. You know, it’s the last thing we want. I mean, these, these are are being put out there to keep our doctors in practice. And that is the most important thing right now is to you know, we have a shortage in this country and we’ll, and that shortage is going to get worse. The last thing I want, or physicians to go out of business. That will be a, a very sad day.

Justin (42:46)
Absolutely. So we’re going to post some resources on the show notes page. So anesthesia, success.com/ 45 B as this will be episode 45 [inaudible]. We’re going to have a news contact info there if you want to reach out to her. And also some of the resources that she recommends that practice owning physicians especially, but, but even some employed physicians familiarize themselves with in order to make sure they understand what did the stark waivers mean. How should we consider trying to capitalize on any opportunities that they present right now? So anesthesia, success.com/ 45 B, you can check that out. A new earthy, thank you very much for joining us today on the anesthesia success podcast. Thank you very much. If you liked what you heard this week, head on over to anesthesia, success.com where you can find more content and free resources to help you build a successful career in anesthesiology and pain management. If you want to leave a review in iTunes, I would also really appreciate it. Thanks for using some of your valuable time to join me today on the anesthesia success podcast.