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    Comparison Chart of Anti-Kickback Safe Harbors and Stark Exceptions -- Bona Fide Employment Relationships

    Bona Fide Employment Relationships – Current as of March 2021

    Stark
    Stark exception to the referral prohibition related to compensation arrangements for bona fide employment relationships with physicians (or an immediate family member of the physician) 42 CFR 411.357(c) 

    Anti-Kickback
    Safe harbor for employment relationships 42 CFR 1001.952(i)

    Any amount paid by an employer to a physician (or immediate family member) who has a bona fide employment relationship with the employer for the provision of services.

    Any amount paid by an employer to an employee

    The employment is for identifiable services.

    The employment is a bona fide employment relationship with the employer for employment in the furnishing of any item or service for which payment may be made in whole or in part under Medicare, Medicaid, or other Federal health care programs.

    The amount of the remuneration under the employment is: a) consistent with the fair market value of the services; and b) is not determined in any manner that takes into account  the volume or value of referrals by the referring physician (This provision does not prohibit payment of remuneration in the form of a productivity bonus based on services performed personally by the physician (or immediate family member of the physician).

     

    The remuneration is provided under an arrangement that would be commercially reasonable even if no referrals were made to the employer.

     
    If any compensation paid to the referring physician is conditioned on the physician’s referrals to a particular provider, practitioner, or supplier, the arrangement must also meet the following requirements (a) the compensation or formula for determining the compensation is set in advance for the duration of the arrangement (changes to the compensation or formula must be prospective); (b) the compensation must be consistent with the fair market value of the physician’s services, (c) the referral requirement must be set out in writing and signed by the parties, (d) the requirement to make referrals to a particular provider does not apply if the patient expresses a preference for a different provider, the patient’s insurer determines the provider, or the referral is not in the patient’s best medical interest in the physician’s judgment, (e) the required referrals relate solely to the physician’s scope of services covered by the employment, personal service, or managed care arrangement, and (f) neither the existence of the compensation arrangement nor the amount of compensation can be contingent on the number or value of the physician’s referrals to a particular provider, practitioner, or supplier, but the referral requirement may require the physician to refer an established percentage or ratio of the physician’s referrals to a particular provider, practitioner, or supplier.