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    Comparison Chart of Anti-Kickback Safe Harbors and Stark Exceptions -- Fair Market Value Compensation

    Fair Market Value Compensation – Current as of November 2017

    Stark
    Stark exception to the referral prohibition related to compensation arrangements for fair market value compensation Click this link see how this section was amended in January 2016.  Amendments also are incorporated below.

    Anti-Kickback
    [No comparable safe harbor]

    The arrangement is between an entity and a physician (or an immediate family member) or any group of physicians (regardless of whether the group meets the definition of a group practice) for the provision of items or services (other than the rental of office space) by the physician (or an immediate family member) or group of physicians to the entity, or by the entity to the physician (or an immediate family member) or a group of physicians.

     

    The arrangement is in writing, signed by the parties, and covers only identifiable items or services, all of which are specified in writing.

     

    The writing specifies the timeframe for the arrangement, which can be for any period of time and contain a termination clause, provided that the parties enter into only one arrangement for the same items or services during the course of a year. An arrangement may be renewed any number of times if the terms of the arrangement and the compensation for the same items or services do not change.

     

    The writing specifies the compensation that will be provided under the arrangement. The compensation must be set in advance, consistent with fair market value, and not determined in a manner that takes into account the volume or value of referrals or other business generated by the referring physician. Compensation for the rental of equipment may not be determined using a formula based on-- (i) A percentage of the revenue raised, earned, billed, collected, or otherwise attributable to the services performed or business generated through the use of the equipment; or (ii) Per-unit of service rental charges, to the extent that such charges reflect services provided to patients referred between the parties.

     

    The arrangement is commercially reasonable (taking into account the nature and scope of the transaction) and furthers the legitimate business purposes of the parties.

     

    The arrangement does not violate the anti-kickback statute or any federal or state law or regulation governing billing or claims submission.

     

    The services to be performed under the arrangement do not involve the counseling or promotion of a business arrangement or other activity that violates a Federal or State law.