Insights & Resources

Medicare/Medicaid Fraud & Abuse Resource Center

    Back To Medicare/Medicaid Fraud & Abuse Resource Center

    Comparison Chart of Anti-Kickback Safe Harbors and Stark Exceptions -- Indirect Compensation Arrangement

    Indirect Compensation Arrangements – Current as of March 2021


    Stark exception to the referral prohibition related to a compensation arrangement for indirect compensation arrangements 42 CFR 411.357(p)

    [No comparable safe harbor]

    The arrangement is an indirect compensation arrangement.


    The compensation received by the referring physician (or immediate family member) described in §411.354(c)(2)(ii) is fair market value for services and items actually provided and not determined in any manner that takes into account the volume or value of referrals or other business generated by the referring physician for the entity furnishing DHS. Compensation for the rental of office space or equipment may not be determined using a formula based on-- (A) A percentage of the revenue raised, earned, billed, collected, or otherwise attributable to the services performed or business generated in the office space or to the services performed or business generated through the use of the equipment; or (B) Per-unit of service rental charges, to the extent that such charges reflect services provided to patients referred between the parties.


    The indirect compensation arrangement is set out in writing, signed by the parties, and specifies the services covered by the arrangement, except in the case of a bona fide employment relationship between an employer and an employee, in which case the arrangement need not be set out in an writing, but must be for identifiable services and be commercially reasonable even if no referrals are made to the employer.


    If remuneration to the physician is conditioned on the physician's referrals to a particular provider, practitioner, or supplier, the compensation arrangement described in § 411.354(c)(2)(ii) satisfies the conditions of § 411.354(d)(4).