Ask the Experts: Stark Law and Promotion of Services

Our health system has a new obstetrician/maternity group that it wants to promote on our website and through mailings and e-mail campaigns. Are there any Stark Law or anti-kickback issues that we should be aware of?

Answer: The short answer, of course, is that there are numerous issues to be aware of; however, the nature of the relationship between your health system and the physician group is not clear from the question. Because of the complexity of the federal fraud laws—Stark and anti-kickback, especially—a thorough analysis of that relationship is necessary before a confident answer can be given. The following questions should be answered:

• Are the physicians employees of the system, or is there a different type of arrangement?
• If they are employees, how is their compensation determined?
• Are they tenants in a system-owned building, and if so is the rental fee set at fair market value?
• Have they been offered or given any other kind of remuneration that could be considered an inducement for referrals of patients?
• Would those forms of remuneration fit with in an exception or “safe harbor” under the anti-kickback statute?
• Will the physicians be referring patients to other entities in which they or a family member have a financial relationship? 

In addition to these kinds of questions, a reliable answer may depend on what state the system and medical practice are in because there are not only federal but also state fraud laws that need to be considered. It is essential to consult with your health system’s counsel and an attorney who specializes in the Stark, anti-kickback, and other fraud laws for an answer you can depend on.

This question was answered by: J. Stuart Showalter, JD, MFS, contributing editor, Legal & Regulatory Forum.

The information provided through the Forum’s Ask the Expert service does not constitute legal advice, even when the advice is provided by lawyers. You need to obtain your own legal counsel for legal advice, and consider the laws and regulations that govern your state. The content and opinions expressed are those of the Forum experts, and not that of their employers or of HFMA. HFMA does not endorse the material or warrant or guarantee its accuracy. The responses are based only on the specific facts or circumstances provided. Forum experts cannot be held liable for outcomes related to any information provided.

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