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Stark Exception/Anti-Kickback Safe Harbor Index
STARK LAW EXCEPTIONS AND ANTI-KICKBACK LAW SAFE HARBORS
Physician Services
Stark
Stark exception to the
referral prohibition related to both ownership/investment and
compensation arrangements for certain physician services |
Anti-Kickback
[No comparable safe harbor |
The services are physicians' services,
including diagnosis, therapy, surgery, consultations, and home, office, and institutional calls.
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The services are provided a) personally by
another physician who is a member of the referring physician's group practice or is a physician in the same group practice as the referring physician; or
b) under the supervision of another physician who is a member of the referring physician's group practice or is a physician in the
same group practice as the referring physician, provided that the supervision complies with all other applicable Medicare payment and
coverage rules for the physician services.
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"Physician services'" includes only
those "incident to" services ( the services or supplies are furnished as an integral, although incidental, part of the physician's personal professional
services in the course of diagnosis or treatment of an injury or illness)
that are physician services. All other "incident to'" services (for example, diagnostic tests, physical therapy)
are outside the scope of this section.
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Increased Coverage, Reduced Cost-Sharing Amounts, or Reduced Premium Amounts Offered
by Health Plans
Stark
[No comparable exception] |
Anti-Kickback
Safe harbor for increased
coverage, reduced cost-sharing amounts, or reduced premium amounts offered by health plans
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If the health plan is a risk-based
health maintenance organization, competitive medical plan, prepaid health plan, or other health plan under contract with CMS or a
State health care program and operating under a Federal statutory demonstration authority, or under other Federal statutory or regulatory
authority, it must offer the same increased coverage or reduced cost-sharing or premium amounts to all Medicare or State health care program
enrollees covered by the contract unless otherwise approved by CMS or by a State health care program.
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If the health plan is a health maintenance
organization, competitive medical plan, health care prepayment plan, prepaid health plan or other health plan that has executed a
contract or agreement with CMS or with a State health care program to receive payment for enrollees on a reasonable cost or
similar basis, it must comply with both of the following two standards: a) the health plan must offer the same increased coverage or
reduced cost-sharing or premium amounts to all Medicare or State health care program enrollees covered by the contract or agreement
unless otherwise approved by CMS or by a State health care program; and b) the health plan must not claim the costs of the increased
coverage or the reduced cost-sharing or premium amounts as a bad debt for payment purposes under Medicare or a State health care program or
otherwise shift the burden of the increased coverage or reduced cost- sharing or premium amounts to the extent that increased payments are
claimed from Medicare or a State health care program.
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Obstetrical Malpractice Insurance Subsidies
Stark
Stark exception to the referral prohibition related to compensation arrangements for
obstetrical malpractice
insurance subsidiaries |
Anti-Kickback
Safe harbor for obstetrical
malpractice insurance subsidies
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| Payments to a
referring physician that meet all of the conditions in the anti-kickback safe harbor for obstetrical malpractice
insurance subsidiaries. |
The payment is made by a hospital or
other entity to another entity that is providing malpractice insurance (including a self-funded entity), where such payment
is used to pay for some or all of the costs of malpractice insurance premiums for a practitioner (including a certified nurse- midwife)
who engages in obstetrical practice as a routine part of his or her medical practice in a primary care
health professional shortage area ("HPSA").
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The payment is made in accordance with a written
agreement between the entity paying the premiums and the practitioner, which sets out the payments to be made by the entity, and the
terms under which the payments are to be provided.
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The practitioner must certify that for
the initial coverage period (not to exceed one year) the practitioner has a reasonable basis for believing that at least 75 percent of the
practitioner's obstetrical patients treated under the coverage of the malpractice insurance will either: a) reside in a HPSA or medically underserved area
('MUA");
or b) be part of a medically underserved population ("MUP"). Thereafter, for each additional coverage period (not to exceed one year), at
least 75 percent of the practitioner's obstetrical patients treated under the prior coverage period (not to exceed one year) must have: a) resided
in a HPSA or MUA; or b) been part of a MUP.
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There is no requirement that the practitioner make
referrals to, or otherwise generate business for, the entity as a condition for receiving the benefits.
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The practitioner is not restricted
from establishing staff privileges at, referring any service to, or otherwise generating any
business for any other entity of his or her choosing.
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The amount of payment may not vary
based on the volume or value of any previous or expected referrals to or business otherwise
generated for the entity by the practitioner for which payment may be made in whole or in part under
Medicare, Medicaid or any other Federal health care program.
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The practitioner must treat
obstetrical patients who receive medical benefits or assistance under any Federal health
care program in a nondiscriminatory manner.
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The insurance is a
bona fide malpractice insurance policy or program, and the premium, if any, is
calculated based on a bona fide assessment of the liability risk covered under the insurance.
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Costs of malpractice insurance premiums means:
a) for practitioners who engage in obstetrical practice full-time, any costs attributable to malpractice insurance; or b) for practitioners
who engage in obstetrical practice on a part- time or sporadic basis, the costs: attributable exclusively to the obstetrical portion of the
practitioner's malpractice insurance and related exclusively to obstetrical services provided in a primary care HPSA.
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Referral Agreements for Specialty Services
Stark
[No comparable exemption] |
Anti-Kickback
Safe harbor for specialty service
referral agreements
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The agreement is for one party to refer a patient to the
other party for the provision of a specialty service payable in whole or in part under Medicare or a State health care program
in return for an agreement on the part of the other party to refer that patient back at a mutually agreed upon
time or circumstance.
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The mutually agreed upon time or
circumstance for referring the patient back to the originating individual or entity is clinically appropriate.
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The service for which the referral is made is not
within the medical expertise of the referring individual or entity, but is within the special expertise of the other
party receiving the referral.
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The parties receive no payment from each other
for the referral and do not share or split a global fee from any Federal health care program in connection
with the referred patient.
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Unless both parties belong to the same group
practice, the only exchange of value between the parties is the remuneration the parties receive directly from third-party payors or the patient
compensating the parties for the services they each have furnished to the patient.
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Price Reductions Offered by Contractors With Substantial Financial Risk to Managed Care Organizations
Price Reductions Offered to Eligible Managed Care Organizations.
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