Emergency Department Staffing and Call-Coverage Arrangements

Emergency Department Staffing and Call-Coverage Arrangements at a Glance

Emergency department (ED) staffing and call-coverage arrangements are subject to scrutiny under federal anti-kickback and Stark Law regulations. These arrangements, which often involve third-party providers or contract physicians, must be carefully structured to avoid violating the Anti-Kickback Statute or Stark Law. ED staffing contracts are typically structured under safe harbor (d) personal services arrangements, which provide a legal framework for compensation and service delivery under certain conditions.

The Legal Framework

The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), prohibits the offer, payment, solicitation, or receipt of remuneration to induce or reward referrals of items or services payable by a federal health care program. This statute imposes criminal penalties, including fines of up to $100,000 or imprisonment of up to 10 years, or both. ED staffing arrangements must be evaluated to ensure that any compensation does not appear to be tied to referrals or the volume of services provided.

The safe harbor regulations, found at 42 C.F.R. § 1001.952, provide exceptions to the Anti-Kickback Statute, including for personal services and management contracts (safe harbor (d)). ED staffing contracts often fall into this category, provided they meet specific criteria, such as fair market value compensation, written agreements, and absence of patient referrals as a condition of service.

The Stark Law, 42 U.S.C. § 1395nn, separately prohibits physician self-referrals for designated health services to entities with which the physician has a financial relationship, unless an exception applies. This statute is a civil law administered by the Centers for Medicare & Medicaid Services (CMS), and it applies even in the absence of federal program payments. ED staffing arrangements involving physicians must be carefully structured to avoid violating Stark Law, particularly if the physician has a financial interest in the staffing entity.

The Federal Overlay

The federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), makes it a felony to knowingly and willfully offer, pay, solicit, or receive remuneration to induce or reward referrals of items or services payable by a federal health care program. The Stark Law, 42 U.S.C. § 1395nn, separately prohibits physician self-referrals for designated health services payable by Medicare or Medicaid, on strict-liability terms. Both regimes carry safe harbors and exceptions published at 42 C.F.R. § 1001.952. State referral and fee-splitting statutes operate alongside these federal prohibitions and can apply even where no federal program payment is involved.

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For further exploration of related topics, see Practice Areas, The Anti-Kickback Statute Explained, Safe Harbors Under the Anti-Kickback Statute, AKS and Stark Law Overlap, Recent Anti-Kickback Statute Decisions, and FAQ.