CMS

December 11, 2025

Posted on by Courtney Patterson

QUESTION:
Our health system employs doctors through a “captive PC” where the CMO is the sole shareholder of the professional corporation but has no right to any distribution of profits or other rights normally related to ownership in a private medical group.  Does the Stark Law still apply to arrangements between the hospitals in our system and the captive PC?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:
No.  In 2020, the definition of “ownership or investment interest” for the purpose of the Stark Law was amended to state that it does not include:  “A titular ownership or investment interest that excludes the ability or right to receive the financial benefits of ownership or investment, including, but not limited to, the distribution of profits, dividends, proceeds of sale, or similar returns on investment.”  42 CFR §411.354(b)(3)(vi).  This codified the conclusion of CMS Advisory Opinion AO-2005-08-01.  In that Advisory Opinion, CMS  concluded that stock ownership by physicians in a nonprofit corporation did not constitute an ownership or investment interest for the purposes of the Stark Law because the stock held by the physician-shareholders exhibited none of the benefits typical of stock ownership.

So, the fact that the hospitals in your situation may subsidize losses incurred by the captive PC would not, in and of itself, have Stark Law implications as it would if the hospital was subsidizing an independent practice.  However, to the extent that there would likely be indirect compensation arrangements between the hospitals and the employed physicians, it would still be necessary to make sure the compensation paid to the doctors reflects the fair market value of their services and is commercially reasonable.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

October 30, 2025

Posted on by Courtney Patterson

QUESTION:
Are the CMS telehealth flexibilities gone for good?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
On September 30, 2025, many of the pandemic-era Medicare telehealth flexibilities expired.  This included such provisions that allowed Medicare recipients to receive non-behavioral/mental health care in their homes and removed geographic restrictions on originating sites for such services.  With their expiration, the statutory limitations that had been waived during the COVID-19 public health emergency are now back in effect.

Since the end of the COVID-19 public health emergency, Congress has repeatedly extended telehealth flexibilities to allow time for further consideration of their permanence. In September, several bills were introduced to extend the remaining flexibilities for periods ranging from seven weeks to two years, aiming to prevent a “telehealth cliff.”  Unfortunately, before any action could be taken, the government shut down.

Since the expiration of the flexibilities, we have not heard much in terms of next steps for telemedicine.  So far, CMS has indicated that practitioners who choose to perform telehealth services that are not payable by Medicare on or after October 1, 2025, may want to consider providing beneficiaries with an Advance Beneficiary Notice of Noncoverage (“ABN”).  CMS has also noted that practitioners may choose to hold claims associated with telehealth services that are currently not payable by Medicare in the absence of Congressional action on the flexibilities.

When the government reopens, we will be watching closely to see what, if any, action Congress takes to reup some of these flexibilities or make them permanent. Unfortunately, for the time being, to guarantee payment, healthcare entities need to provide telehealth services within the confines of what CMS billing rules require, which means without many of those flexibilities we have become accustomed to. CMS issued an updated list of FAQs earlier this month to help sort through many of the changes.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

May 29, 2025

Posted on by Courtney Patterson

QUESTION:
Can a hospital operating multiple campuses under a single CCN number have an exclusive contract with a physician group to exercise clinical privileges at one campus and an exclusive contract with another group to exercise privileges at another campus?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The guidance we have received over the years has been that if a Medicare‑certified hospital has multiple campuses, clinical privileges cannot be limited solely to one campus.

This guidance is based on reading the Medicare Conditions of Participation and the official Interpretive Guidance issued by CMS in conjunction with the provider‑based rules.  The COPs and Interpretive Guidance state:

42 CFR §482.22 Condition of Participation: Medical Staff
The hospital must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital.

Interpretive Guidelines §482.22
The hospital must have one medical staff for the entire hospital (including all campuses, provider‑based locations, satellites, remote locations, etc.).  For example, a multi‑campus hospital may not have a separately organized medical staff for each campus.  On the other hand, in the case of a hospital system, it is permissible for the system to have a unified and integrated medical staff (hereafter referred to as a “unified medical staff”) for multiple, separately certified hospitals.  The medical staff must be organized and integrated as one body that operates under one set of bylaws approved by the governing body.  These medical staff bylaws must apply equally to all practitioners within each category of practitioners at all locations of the hospital and to the care provided at all locations of the hospital.  The medical staff is responsible for the quality of medical care provided to patients by the hospital.

The provider‑based rules state:

42 CFR §413.65 (d) Requirements applicable to all facilities or organizations.  Any facility or organization for which provider‑based status is sought, whether located on or off the campus of a potential main provider, must meet all of the following requirements to be determined by CMS to have provider‑based status:

***

(2) Clinical services.  The clinical services of the facility or organization seeking provider‑based status and the main provider are integrated as evidenced by the following:

(i) Professional staff of the facility or organization have clinical privileges at the main provider.

This essentially means that while a hospital with multiple campuses could have an exclusive contract that limits the exercise of clinical privileges to members of the group at all campuses and provider‑based locations, an exclusive contract limiting the exercise of privileges to physicians in the contracting group to one campus would not work since other physicians with privileges at the other campuses could claim that they have the right to exercise those privileges system‑wide.

Aside from the CMS rules, a hospital would be bound by exclusivity provisions in existing hospitals, so if there is an exclusive contract in place covering all locations, the hospital would be in breach of contract if it allowed physicians outside the group to exercise clinical privileges at another hospital.

The risk of non‑compliance with this interpretation of the rules is most likely a citation on a survey (either a routine one or one triggered by a complaint) which could be easily fixed by allowing privileges to be exercised at each campus.

Moreover, notwithstanding the rule that privileges extend to each campus, a physician can always choose to only practice at one campus, and if the physician is employed by the hospital or health system, the employer could tell the physician that he or she must limit the exercise of privileges to specific campus(es).

If you have a quick question about this, e‑mail Dan Mulholland at DMulholland@hortyspringer.com.

May 22, 2025

Posted on by Courtney Patterson

QUESTION:
Can we add advanced practice professionals to our on-call schedule for our emergency department?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Short answer:  nope.  Including APPs on the on-call list is prohibited by the Emergency Medical Treatment and Labor Act (“EMTALA”).  Under EMTALA, hospitals with emergency departments are required to provide Medical Screening Examinations to anyone who presents to the hospital seeking emergency care, regardless of their ability to pay.  A key component of EMTALA compliance is the requirement that hospitals maintain a list of on-call physicians who can provide the necessary treatment to the patient.  Specifically, CMS guidelines state, in part:

The list of on-call physicians must be composed of physicians who are current members of the medical staff or who have hospital privileges.  If the hospital participates in a community call plan, then the list must also include the names of physicians at other hospitals who are on call pursuant to the plan.  The list must be up-to-date, and accurately reflect the current privileges of the physicians on call.  Physician group names are not acceptable for identifying the on-call physician.  Individual physician names are to be identified on the list with their accurate contact information.

CMS recognizes that advanced practice professionals, like physician assistants and nurse practitioners, are increasingly integral to emergency department care and, therefore, can perform medical screening examinations as “Qualified Medical Personnel (QMP)” within their scope of practice and in accordance with hospital bylaws.  Moreover, if permitted under hospital policy, the on-call physician may send an APP as the physician’s representative to appear at the hospital and provide further assessment and stabilizing treatment.  However, the on-call physician remains ultimately responsible for providing the necessary care, regardless of who appears in person.

It is also important to note that, in the event the ED physician disagrees with the on-call physician’s decision to send an APP and, instead, requests the on-call physician to present to the ED, then the on-call physician is required under EMTALA to appear personally.  Therefore, it’s recommended that the decision to send an APP be made in collaboration with the ED physician.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.

December 5, 2024

Posted on by Courtney Patterson

QUESTION:
It was mentioned that we can expedite the credentialing and privileging of telemedicine providers by using a process that would allow us to rely on the credentialing and privileging of telemedicine providers at another facility. Have you heard of this process?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The process you’re describing is an option CMS has put in place to give healthcare facilities an expedited process to credential and privilege telemedicine providers. It allows your facility to rely on the credentialing and privileging of a provider at another site, also called the distant site, to credential and privilege them at your own facility. To use this process, first and foremost, you must ensure that the entity that is serving as the distant site is either a Medicare-participating hospital or a telemedicine entity that furnishes services in compliance with the Medicare Conditions of Participation.

From there, CMS requires that you have an agreement with the distant site, and then details what must be outlined in that agreement, including a list of the telemedicine provider’s privileges at the distant site, assurance that the telemedicine provider has privileges in the state where patients will be located, and mention that the distant site will receive performance review information of a provider’s privileges.

If this is a process your facility is interested in using, it is worth a deeper dive into those CMS requirements. But before you use this process, I highly recommend your facility have a discussion on whether this process is right for you. It is a big act of trust relying on another facility’s credentialing and privileging process as opposed to your own. You want to have a candid discussion on if this is something you will do for every telemedicine provider, if this is a process you will limit to only certain distant sites, etc.

Additionally, depending on your accrediting body (e.g., the Joint Commission, DNV, etc.), there may be some additional requirements that the distant site may have to meet to be eligible for this process, so don’t forget to check accreditation standards as well.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

August 15, 2024

Posted on by Courtney Patterson

QUESTION:
We are in a mid-sized city with one other competing hospital.  Even though this other hospital appears to have a similar composition of specialists (at least on paper), it keeps transferring emergency patients to us claiming it doesn’t have anyone on call in certain specialties.  Our physicians are starting to feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer.  A lateral transfer occurs where the same services are provided at both the sending hospital and the receiving hospital.  Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.”  However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.”  Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient.  This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).

This requirement has put hospitals in a bind, and while it may be patently unfair, refusing the transfer could create its own host of problems.  As such, we recommend accepting the transfer to avoid having patients get caught in the middle.  From there, you could consider how best to address the situation going forward.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

May 30, 2024

Posted on by Courtney Patterson

QUESTION:
Are provider-based services performed in a mobile unit in an off-campus location covered by the site neutrality rules passed in 2016?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
No.  Just like “grandfathered” services and off‑campus dedicated emergency departments, hospital services provided in an off-campus location through a mobile facility or portable unit are excepted from that rule and are reimbursed at the full hospital outpatient rate.

Section 603 of the Bipartisan Budget Act of 2015 generally eliminated reimbursement under the Medicare outpatient prospective payment system for items and services furnished in off-campus hospital outpatient provider‑based departments established on or after November 2, 2015. Instead, hospitals would be reimbursed at the lower Medicare physician fee schedule rate.  CMS promulgated rules implementing this law in 2016, and since then the site neutrality rules have been expanded from time to time.

The key exceptions to this rule are services performed in on-campus facilities (within 200 yards of the main hospital building), dedicated emergency departments, off-campus facilities that were in operation or “mid-build” on the date the law was enacted, or a “remote location of the hospital” (a facility furnishing inpatient hospital services under the name, ownership, and financial and administrative control of the main provider hospital). But services performed through a mobile facility and/or portable unit are excepted as well and paid at the full OPPS rate. See CMS Transmittal 2394 (November 15, 2019).

Mobile facilities and portable units are services that require medical equipment which is provided in a vehicle or the equipment for the service is transported to multiple locations within a geographic area. The most common types of mobile facilities/portable units are mobile diagnostic testing facilities, portable X‑ray units, portable mammography units and mobile clinics. But the equipment must travel around.  A hospital can’t just park a mobile facility or leave a portable unit permanently in a off-site provider-based location and then get paid at the full OPPS rate.

Also, physical therapists and other practitioners (e.g., physicians, nurse practitioners, physician assistants) who perform services at multiple locations (e.g., house calls, assisted living facilities) are not considered to be mobile facilities/portable units.  They’re people.

On the other hand, physician services performed on mobile units are reimbursed by Medicare Part B as if they were performed in a freestanding office rather that in a hospital as they normally would be in a provider-based facility.  That is, they are reimbursed at the full physician fee schedule rate. See Medicare Claims Processing Manual 20.4.2 – Use Place of Service Code 15.

If you are still awake after that spiel and have a quick question about this topic, e‑mail Dan Mulholland at dmulholland@hortyspringer.com.

May 2, 2024

Posted on by Courtney Patterson

QUESTION:
May a physician be on call for more than one hospital at the same time (take “simultaneous call”) or perform elective surgeries while on call?  If so, is that physician required to identify a specific back-up physician who will take calls at our hospital if the original physician is called to another hospital or is in the middle of an elective surgery when called by our hospital?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
CMS doesn’t specifically require that another physician be identified to take back-up call if the original on-call physician is performing elective surgery or is taking call at another hospital when the ED needs assistance.  Instead, CMS says that a “back-up plan” must be in place.  Per CMS, “some hospitals may employ the use of ‘jeopardy’ or back-up call schedules,” indicating that other hospitals may choose to not use back-up call schedules.  Here’s the full quote from the EMTALA Interpretive Guidelines (found in Appendix V of the Medicare State Operations Manual):

The [hospital’s] policies and procedures must also ensure that the hospital provides emergency services that meet the needs of an individual with an EMC if the hospital chooses to employ any of the on-call options permitted under the regulations, i.e., community call, simultaneous call, or elective procedures while on-call. In other words, there must be a back-up plan to these optional arrangements. For instance, some hospitals may employ the use of “jeopardy” or back-up call schedules to be used only under extreme circumstances. The hospital must be able to demonstrate that hospital staff is aware of and able to execute the back-up procedures. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf

Of course, a hospital may decide that its On-Call Policy will not permit simultaneous call or elective surgeries while on call.  Or, a hospital’s policy may require on-call physicians to identify a specific individual to provide back-up coverage in such cases.  The key is to clearly identify the requirements in the hospital’s On-Call Policy.

If you have a quick question about this, e-mail Mary Paterni at MPaterni@hortyspringer.com.

February 29, 2024

Posted on by Courtney Patterson

QUESTION:
Since the COVID-19 waiver that paused certified registered nurse anesthetist (“CRNA”) supervision requirements expired in May 2023, our facility has been scrambling to find anesthesiologists to supervise our CRNAs.  Is there anything we can do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Historically, CMS has required CRNAs to be under the supervision of a practitioner when administering anesthesia.  Given the nature of their work, most facilities required CRNAs to be under the supervision of an anesthesiologist.  As recruiting providers is becoming increasingly difficult, many facilities are running into the same problem that they do not have enough anesthesiologists to adequately supervise their CRNAs.

If your state has not yet joined the 24 states that have elected to opt out of CMS’s CRNA supervision requirements, Medicare has long had flexibility built into the Medicare Conditions of Participation (“COPs”) that may help ease your burden.  The COPs allow CRNAs to provide anesthesia, if they practice in an opt‑out state or in any other state, so long as the CRNA is under the supervision of the “operating practitioner or an anesthesiologist” who is immediately available.  According to CMS Interpretive Guidelines, in the case of procedures, an operating practitioner may include the surgeon performing the procedure.

While surgeons may be an alternative to help fill your need for supervising physicians, we would not consider this an open and shut problem.  Using surgeons as supervising physicians opens the door to several key conversations that still need to take place, both with legal counsel and internally.  For instance, does state law also allow surgeons to supervise CRNAs; is there any additional liability incurred by the surgeons for supervising the CRNAs; and will the surgeons agree to act as supervising physicians?

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

October 12, 2023

Posted on by Courtney Patterson

QUESTION:
As of last week, we no longer maintain a contract with a particular insurer, resulting in a change of network status.  How do we handle patients who are now considered “out-of-network”?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
The No Surprises Act has anticipated this issue.  Moving forward, if a contract terminates between a plan and provider or facility, the NSA applies continuity of care protections to individuals who are considered a “continuing care patient” and who are in the process of receiving items or services from the facility for which their insurance would cover.

In the event a plan’s contract is terminated with a provider or facility, the plan will notify its enrollees who are continuing care patients.  These patients will have the right to elect continued transitional care from the provider and can choose to have the same benefits as they would have had under the plan had the contract not terminated.  This election would only apply to the course of treatment currently being furnished by the provider or facility that qualifies the individual as a continuing care patient.

If the patient elects to continue treatment with their provider or facility, then the provider or facility must (1) accept payment from the plan for items or services furnished to the continuing care patient as payment in full and (2) continue to adhere to the policies, procedures and standards imposed by the plan for the individual as if the termination has not occurred.

According to CMS, this election may continue for the earlier of 90 days from the time the patient is notified of the plan’s termination or until the date on which the patient no longer qualifies as a continuing care patient with the provider or facility.

As an example, if a pregnant woman learns at her next obstetrician appointment that her physician no longer maintains a contract with her insurance, she would be eligible for continuity of care protections because she is receiving ongoing treatment for her pregnancy.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.