stark law fair market value industry best practice stark law fair market value industry best practice

Many individual physicians believe that fair market value is met so long as relevant benchmarks exist. Third, fair market value as a concept is also dictated by relevant government enforcement actions as well as lawsuits. First, it delineated that salary surveys or salary survey percentiles may not be appropriate to use in all circumstances. ; and (3) Does it mean the compensation is not commercially reasonable? 1320a-7b) prohibit payments and receipt of payments given with an intent to influence the purchase of a product or services for which Medicare or Medicaid reimbursement is sought. Thanks for reaching out. Eliminating the period of disallowance rules and correcting discrepancies during the arrangement. Stark requires that a lease with a referring physician be in writing, signed by both parties, for a term of at least one year, at a fair market value rental rate. Proceduralists such as dermatologists, orthopedic surgeons, ophthalmologists, otolaryngologists, plastic surgeons, urologists, etc. A qualitative analysis of the nature and scope of services performed, necessity of services, and comparability of services should be performed. Jana will be discussing the Stark Law changes, and Angie will be providing related valuation examples during the September 13, 2022 Let's Talk Compliance webinar entitled Stark Law Changes and Impact on Physician Compensation Part 2. The CMS Final Rule implements changes to the Stark Law and offers several clarifying provisions related to key Stark Law terms and concepts. Consult with healthcare counsel to review compensation arrangements to identify any structures that take into account the volume or value of referrals or business Not only was the definition of general market value amended, but it was also given three unique definitions related to the context of a specific type of transaction. Whether it's an outright acquisition or a lease or service agreement, and whether it is the business or the underlying tangible assets (real estate and equipment), the transaction must be consistent with Fair Market Value. Specialties like critical care, hospital medicine, emergency medicine, and pulmonary medicine may have experienced increases in patient volume due to the pandemic. HAND Children are the Future. Arrangements for patient engagement and support to improve quality, health outcomes, and efficiency. Which of the following are exceptions under Stark? The following definition is from the regulations: means the value in arm's-length transactions, consistent with the general market value. Fair market value is defined to mean the "value in an arm's length transaction, consistent with general market value of the subject transaction" (42 CFR 411.351). This ensures that there is maximum compliance of regulatory statutes and prevents any violation of healthcare laws. As CMS stated, In our view, each compensation arrangement is different and must be evaluated based on its unique factors. Virtually every provider compensation exception under the Stark Law requires that the compensation paid reflects fair market value. 1395nn). A regular assessment should be conducted to determine if the healthcare transactions are commercially reasonable. 411.354). 411.362 Additional requirements concerning physician ownership and investment in hospitals. This safe harbor is intended to provide greater predictability for model participants and uniformity across models. This has also been true in markets in which the demand and competition for CRNAs has exploded. The reader is also cautioned that this material may not be applicable to, or suitable for, the readers specific circumstances or needs, and may require consideration of nontax and other tax factors if any action is to be contemplated. Healthcare organizations should consider both qualitative and quantitative components for FMV and commercial reasonableness analyses of financial transactions. Because of increased enforcement, it is very common for organizations to work with legal professionals who specialize in fair market value and the Stark Law for the purpose of creating compliant and defensible financial arrangements. The Stark "in-office ancillary" exception permits a physician or group practice to order and provide DHS in the office, provided that the DHS is ancillary to the professional medical services provided by the practice. Fair Market Value ( 411.351) C. Group Practices ( 411.352) 1. Fair Market Value (FMV) The Stark Law addressed a legitimate problem. The general market value definitions are: What does it mean for a compensation arrangement to be commercially reasonable? Modified the rule related to profit sharing and productivity bonuses such that distribution of profits from designated. Strategy, market growth, and larger referral bases were not among the examples. The law provides that "fair market value" is the value in arms' length transactions concerning rentals or leases and the value of a rental property for general commercial purposes. Grabbing a 2021 survey and finding a percentile might be enough, then again, it might not. Current Definition of General Market Value (42 C.F.R. At WilliamsMarston, our team of valuation experts are readily available to assist you with your most important financial transactions, including navigating Stark Law and fair market value (FMV) matters. Its criminal penalties include fines up to $25,000 per violation, and up to 5 years in federal prison. General market value is the compensation that would be included in a service agreement as the result of bona fide bargaining between well-informed parties who are not otherwise in a position to generate business for the other party. Clarifies the period of disallowance for referrals and billing following a self-referral law violation, the satisfaction requirements for set-in-advance compensation, when an entity may direct a physicians referrals to a provider, the requirement for exclusive use of office space/ equipment, and the exception for payment by a physician to an entity. However, we agree with the commenter that asserted that a hospital may find it necessary to pay a physician above what is in the salary schedule, especially where there is a compelling need for the physicians services. Despite the request and urging of commenters, CMS declined to establish rebuttable presumptions that compensation is fair market value or safe harbors that would deem compensation to be fair market value if certain conditions are met. Bottom line, CMS affirmed that there is no guarantee to fair market value determinationthere is no universal formula or proverbial rubberstamp as it pertains to provider compensation. OIGs proposed new safe harbors are: Additionally, OIG is finalizing changes to the following existing safe harbors: CMS modifications and additions to the Stark Law rules were equally significant. The Department of Health and Human Services has released extensive and significant revised final rules governing the Physician Self-Referral Law 1 (the Stark law) and the Medicare Anti-Kickback Statute 2 (AKS) in furtherance of its efforts to create a more hospitable regulatory climate for innovation in health care. Specifically, the Final Rule includes new or modified regulatory definitions for the terms "commercially reasonable," "fair market value," and "general market value" as well as terms particular to the definition of a "Group Practice." Interested in learning about what is a referral? If an appraiser is hired, the appraiser's qualifications and experience must be considered if that appraisal will be relied upon. The fair market value exception is a compensation exception that is flexible depending on the arrangement. TheregressionequationisY=20.0+7.21XPredictorConstantXAnalysisSOURCERegressionResidualTotalCoef20.0007.210ofDF1Error8SECoef3.22131.3626VarianceSS41587.3751984.1T6.215.29. \text{SOURCE} & \text{DF} & \text{SS}\\ Documenting the organizations goals with the arrangement or transaction must be a priority. J. William Bookwalter, III, M.D. Key PYA Takeaway: CMS is clarifying that the Big 3 (fair market value, commercial reasonableness, and the volume or value standard) are separate and distinct concepts. 3) Specify an aggregate payment, which is set in advance. Local transportation safe harbor was revised to expand mileage limits for rural areas (to 75 miles) and eliminate mileage limits for transporting patients discharged from the hospital to their home. 1 The payments that exceed FMV are viewed as potential referrals, which is a violation of Stark Law that can lead to penalties and a healthcare systems exclusion from participation in federal health programs. \end{matrix} A comprehensive, but not all inclusive, list of the items covered in the final rule follows. Downstream revenue may include referrals for laboratory services, referrals for imaging services, referrals for hospital services, or even referrals to other specialists. This is especially true given that scrutiny has increased greatly over the past decade, with the government taking aim at fraud and questionable arrangements and more fervently enforcing the Stark Law and Anti-Kickback Statute (AKS). According to CMS in the Final Rule, We continue to believe that this determination should be made from the perspective of the particular parties involved in the arrangement. Another key factor to commercial reasonableness is answering the question: Does the arrangement make sense to accomplish the parties goals? The same is not true for physicians and other entities when the Stark Law applies. Close the income statement accounts with debit balances. Our fixed asset valuation services serve a variety of purposes for our clients, including: Anti-Kickback Statute and Stark Law Compliance 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. What are your reasons? The Stark and AKS Final Rules became effective January 19, 2021, with the exception of certain changes to the definition of a group practice that have an effective date of January 1, 2022 to give physician practices time to adjust their compensation methodologies. The key elements of a robust FMV practice continue, however, to evolve. With the increased rate of mergers and acquisitions, healthcare organizations are vulnerable to federal scrutiny. The Anti-Kickback Statute is a criminal law that prohibits healthcare organizations from knowingly and willfully paying any remuneration to induce patient referrals or to generate business involving any service payable by the federal healthcare programs. It is, however, often the best information that one can find. Formally establishes a definition of commercial reasonableness, while deleting outdated Stark Law references and updating key definitions such as fair market value, designated health services, physician, referral, remuneration, and transaction. CMS has stated that compensation between certain percentiles does not provide a safe harbor. In our prior article, we provided a basic overview of Fair Market Value (FMV) assessments and how these have become a key aspect in compensation contracts for cardiologists.We also reviewed how practices should focus on demonstrating their value to hospitals and health systems by showcasing leadership efforts within the practice and hospital, attention to strategy, financial performance . 411.355 General exceptions to the referral prohibition related to both ownership/investment and compensation. thousands of dollars) for apartment buildings. and Don Barbo, Managing Director with VMG Health, on the topic of "New Stark Law and AKS Final Rules -Valuation Considerations." On January 19, 2021, a new era was ushered in as the CMS Stark Law Final Rule and the HHS-OIG Anti-Kickback Statute Final Rule became effective. Last Name (required) This article was originally published by the American Health Law Association in April 2021 as part of their 2021 Health Care Transactions Resource Guide. That is a topic for another day. var today = new Date() An assessment of transactions should be done to analyze if it is reasonable to pay for the services in the first place, in order to prevent violation of the Anti-Kickback Statute. With regard to fair market value (FMV), industry best practice suggests that you _____ in order to . 6 Mark O. Dietrich, CPA/ABV Stark II -Statutory Guidance Stark Statute - 42 U.S.C. HIPAA Compliance 03: Privacy Rule Introduction, Administrative, Physical and Technical Safegu, Compliance - Documentation, Billing and Reimb, HIPAA Compliance 04: Protected Health Informa, Calculus for Business, Economics, Life Sciences and Social Sciences, Karl E. Byleen, Michael R. Ziegler, Michae Ziegler, Raymond A. Barnett, Fundamentals of Engineering Economic Analysis, David Besanko, Mark Shanley, Scott Schaefer. B and C only - False Claims Act liability & Exclusion from the Medicare and Medicaid programs. Email (required), Healthcare eNewsletterTax & Assurance eNewsletterWebinars. These new rules, which significantly amend the existing laws, are a direct result of HHS Regulatory Sprint to Coordinated Care. Catherine Short converses with Rachel V. Rose, JD, MBA, principal with Rachel V. Rose - Attorney at Law, P.L.L.C. There are numerous laws across the country that have been created to remove this unethical practice. The Anti-Kickback Statute is a criminal law that prohibits healthcare organizations from knowingly and willfully paying any remuneration to induce patient referrals or to generate business involving any service payable by the federal healthcare programs. Civil penalties of the AKS include False Claims Act liability, civil monetary penalties (CMP) and program exclusion, up to $50,000 CMP per violation, and civil assessment of up to three times the amount of kickback. The same survey data that many compensation valuators rely on as a central component to their fair market value analysis and opinion. The Situation: The isolated transactions exception under the Stark Law has been used by some providers and entities to retroactively protect services arrangements that do not qualify for personal services or fair market value compensation exceptions because, for example, the arrangements were not reduced to writing before services were rendered. Too often, they have hindered, rather than . Guidance on reconciliation of payment variances. For the past 30 years, a key consideration for health care organizations entering into transactions and arrangements for the employment and compensation of physicians has been the profitability of the practices in which the physicians, their staff, and other practicerelated resources are housedor more precisely the losses of the practices in which physicians and APPs are housed. Many organizations are frequently asking: Do we have greater compliance risk because our practices are losing money according to our internal financial statements and accounting? Also, a quantitative analysis of revenue cycle should be conducted to determine if the anticipated transaction acquires any referrals during the process and to ensure that healthcare organization complies with the regulatory statutes. On November 20, 2020, the U.S. Department of Health and Human Services (HHS) published Final Rules for the Physician Self-Referral Law (Stark Law), the federal AKS, and the Civil Monetary Penalties (CMP) Law. Below is a listing of some of the key changes: For those in the physician and APP compensation valuation arena, and for any hospital or health system that compensates a health care provider for administrative and/or professional services (which would be all hospitals and health systems in the country), there are other aspects of the Stark Law revisions that are of particular interest. Which of the following is TRUE about the Stark Law? We also think this is an appropriate reflection and representation of what CMS recognized and articulated when it said: It is not CMS policy that salary surveys necessarily provide an accurate determination of fair market value in all cases.. This has required abandoning, or at least augmenting, traditional surveys with anesthesia-related job posting sites to find comparable salary offerings and ranges. In addition, CMS removed the "volume or value" and the "other business generated" standards . An analysis to document commercial reasonableness may include, but not be limited to, whether the arrangement helps meet an organizations mission/ vision/ and values, the importance of the arrangement to the service line(-s) affected, how the arrangement affects the cost, quality, and access to care, what other options exist to accomplish the organizations goals, and why the arrangement entered was the best option. The primary regulations governing physician compensation arrangements are the Stark Law and AKS. The Stark Law prohibits physicians from referring patients for services to entities in which the physician or _____ has a financial interest. Financial arrangements should be based on comparable data and should be set in advance by members who have no conflict of interests. Healthcare transactions must be commercially reasonable and should be comparable to what is paid ordinarily for similar services in the area. The argument is that but for the celebrity being in the movie the consumer would not purchase the ticket. General market value means the price that an asset would bring as the result of bona fide bargaining between well-informed buyers and sellers who are not otherwise in a position to generate business for the other party, or the compensation that would be included in a service agreement as the result of bona fide bargaining between well-informed parties to the agreement who are not otherwise in a position to generate business for the other party, on the date of acquisition of the asset or at the time of the service agreement. First, financial incentives from a policy standpoint should not impact the plan of care developed for patients. 1395nn, and the regulations and guidance promulgated thereunder. var year = today.getFullYear() Many of the new and revised regulations apply beyond financial arrangements related to care coordination initiatives, and thus are crucial for all \text{The regression equation is}\\ For example, if a physician is paid at the 75th percentile under a specific survey then fair market value must be met. Many of the changes in the Stark Law are aimed at eliminating regulatory restrictions that could deter or even potentially eliminate some novel arrangements as the industry continues its move towards a value-based health care system. ; . The US Court of Appeals for the Third Circuit endorsed two controversial interpretations of the Stark Law's "volume or value" standard, known as the correlation theory and the practice "loss" theory in U.S. ex rel. They are: (a) the lease agreement must be in writing; (b) the . This revenue generation includes downstream revenue. In order to qualify for the recruitment exception, the arrangement must _________________________ . A and B - not be conditioned on referrals & allow the physician to establish medical staff membership at other hospitals. The final rule creates new exceptions to the Stark Law for value-based arrangements that satisfy specified requirements based on the characteristics of the arrangement and the level of financial risk assumed by the . In turn, CMS is willing to accept any commercially reasonable methodology that demonstrates compensation is comparable to what is ordinarily paid for services in an arms-length transaction. CMS recently issued the Stark Law Final Rule ("Final Rule"), which makes numerous significant changes and provides important clarifications to the Stark Law. Compliant compensation methodologies: Advanced Stark. First, fair market value is based purely on the personally performed services of a physician and not based upon any downstream revenue for the entity or business generated between the parties. 7. For example, the guaranteed compensation for a physician under an employment arrangement would have to be at levels consistent with what other physicians make within those specialties. healthlawyers.org. The Stark Law defines FMV as the value in arms length transactions, consistent with general market value. The commercial division of a real estate firm is conducting a regression analysis of the relationship Documentation of all aspects of relationship. The primary reasons that the Stark Law prevents organizations and individuals from including downstream revenue are numerous. General market value is the compensation that would be included in a service agreement as the result of bona fide bargaining between well-informed parties who are not otherwise in a position to generate business for the other party. 6 Carnahan Group provides a unique platform FMVMD,which allows healthcare organizations to analyze physician compensation arrangements for fair market value and commercial reasonableness instantly. In reading CMS comments in the Federal Register, there is no doubt that CMS views each case as unique and there is not a set formula or methodology for determining fair market value. Under the Stark Law, one of the critical elements of compliance for many exceptions includes the requirement that the financial arrangement is representative of fair market value. Under the statute; Interpretation of the "Volume or Value Standard" for Purposes of the Group Practice Regulations ( 411.352(g)) 2. 1320a-7b. The fair market value of equipment and office space leases is determined without taking into account intended use or, in the case of office space, proximity to the lessor if the . With regard to fair market value (FMV), industry best practice suggests that you _____ in order to better withstand government scrutiny. The arrangement is commercially reasonable (taking into account the nature and scope of the transaction) and furthers the legitimate business purposes of the parties. \text{Analysis} & \text{of} & \text{Variance}\\\\ document.write(year) Cimasi, R. Z T. Traversing the threshold of commercial reasonableness in the healthcare industry. The Anti-Kickback Statute. In some cases, the alignment between compensation and production may be distorted. While the hypothetical fair market value is $450,000, the general market value may exceed that. On the other hand, an arrangement must be considered fair market value in order to be commercially reasonable. Makes clear that signatures may be electronic under the same applicable federal/ state laws while allowing parties to an agreement to obtain the writing requirement documentation within 90 days. Modifying the definition of set in advance used in many Stark exceptions to allow modification of compensation during the term of an arrangement (including in the first year). Allows the electronic health records (EHR) exception to be unending and allows limited donations of cybersecurity that are necessary for EHR, flexible physician payment schedules, and donations of replacement EHR items. Data were collected on several properties Not that CMS made it easy by providing a bright line or even a floor that would allow us to say, if we go above this level, then we must get a formal thirty-party fair market value opinion. According to CMS, We wish to be perfectly clear that nothing in our commentary was intended to imply that an independent valuation is required for allcompensation arrangements.. Helps identify compensation formulas that take into account the volume or value of a physicians referrals as well as those that are allowed to distribute profits from designated health services within a group practice. The exception permits both monetary and nonmonetary remuneration between the parties. The best practice that a health system can adopt for establishing financial arrangements without getting penalized is consulting with a third-party valuation expert to not only rationalize the compensation rate, but to justify the community need. Refines when a physician practice is required to sign a recruitment agreement between a hospital and a physician as well as timing issues for arrangements between a physician and non-physician practitioner (NPP) when a hospital is involved in compensating the NPP. Which of the following is a government sanction provided under the Stark regulation? Others have been slightly more conservative and mandated in their physician contracts that they will not provide total compensation (base compensation plus all bonuses) above the 75th percentile (a true ceiling). Stark defines fair market value (FMV) as ______________________________ . Second, downstream financial incentives in healthcare, as in most industries, is extremely hard to quantify. Personal services and management contracts and outcomes-based payments safe harbor creates protection under safe harbor for part-time or intermittent arrangements and arrangements for which total compensation is not known in advanceit eliminates a requirement that part-time arrangements have a schedule of services specifically set out in advance in the agreement. Thursday, October 20, 2022. For example, in the past some arrangements where physician compensation exceeded professional collections have received considerable scrutiny for commercial reasonableness. The Final Rule provided key guidance on the "Big 3" Stark Law requirements of (1) fair market value; (2) commercial reasonableness; and (3) the volume or value of referrals. On December 2, 2020, the Department of Health and Human Services ("HHS") Office of Inspector General ("OIG") issued final rules including a host of reforms to the AKS, including three changes to the personal services and management contracts safe harbor ("Safe Harbor"). The waivers, which are numerous and fairly broad, offer health care entities significant flexibility to combat COVID-19 in ways . Due to a complex regulatory environment, an in-depth analysis should be performed to ensure that the healthcare transactions are legally permissible at FMV and are commercially reasonable. Healthcare Regulatory and Stark Law/Fair Market Value and Commercial Reasonableness attorney. Although many compensation arrangements are legitimate, a compensation arrangement may violate the anti-kickback statute if even one purpose of the arrangement is to 1320a-7b(b), covers a broader range of activity than the Stark Law, and extends to all medical providers in a position to arrange or recommend medical services."Referrals" under the Anti-Kickback Statute include "any item or service for which payment may be made in whole or in part under a Federal health care program." Unlike fair market value determination, commercial reasonableness is not as readily determined by standardized methodologies, practices, or sources. 6 Financial arrangements are commercially reasonable if they are at FMV, services provided are documented and deemed necessary, and when the services cannot be provided at a lesser value.10 Financial arrangements should be based on comparable data and should be set in advance by members who have no conflict of interests. Additionally, until now, there has been no codified definition for commercial reasonableness, only limited CMS discussion such as that in the proposed 1998 rule. 2) Be in writing and signed by both parties. The Stark Law prohibits physicians from referring patients for services to entities in which the physician or _____________________________ has a financial interest. Record the following closing entries on page 19 of the general journal. stark law fair market value industry best practice. Introduction. They must demonstrate that the net earnings of a tax-exempt organization are not used for private interests of employees and are used for the benefit of the community as a whole. A qualitative analysis of the nature and scope of services performed, necessity of services, and comparability of services should be performed. Referring to survey data regarding practice losses per physician and per provider can be enlightening. On the revenue side, many practices had the benefit of the Paycheck Protection Program, but unfortunately, for many that was not enough to outweigh the additional personal protective equipment cost and lost revenue due to decreased patient volume. Therefore, the analysis is recommended to be conducted by an independent valuation expert to establish a value that is consistent with independently published surveys that are comparable for similar services.