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Engaging in management and investor conversations about maintaining and growing a business is critical, no matter the industry. Whether you’re discussing normal business sustainability, organic growth, or contemplating a sale, these discussions become more complex when practicing physicians are the business’s revenue generators. These conversations must be handled carefully to comply with the spirit and letter of healthcare’s strict fraud and abuse laws. To ensure these discussions are both productive and compliant, it’s essential to navigate these complex regulations effectively.

Why It Matters

Stark Law Compliance: The Stark Law prevents physicians from referring patients for certain designated health services payable by Medicare to an entity with which they (or an immediate family member) have a financial relationship, unless specific exceptions apply. One key requirement is that any transaction must be at “fair market value” and not take into account the volume or value of referrals. The transaction must also be commercially reasonable and must not intend to induce referrals. Understanding and adhering to these rules is critical to avoid severe penalties.

Anti-Kickback Statute Compliance: The Federal Anti-Kickback Statute (AKS) prohibits offering, paying, soliciting, or receiving any form of remuneration in exchange for referrals or to induce the generation of business. This statute ensures that financial incentives don’t influence medical decisions, keeping the focus on patient care rather than financial gain. Any suggestion that the value of a healthcare entity is tied to referral patterns could be viewed as a violation of the AKS, leading to potential criminal and civil penalties.

How to Stay Compliant

  1. Stick to Fair Market Value: In any transaction context, ensure that all business terms are based on objective metrics such as earnings, comparable transactions, and industry benchmarks. Avoid any suggestion that the value of the transaction depends on or will change based on the volume or value of expected referrals from the physician owners.
  2. Document Valuation Processes: Keep thorough documentation of how fair market value was determined, including the methodology and sources used. This documentation should clearly show that no referral-based considerations influenced the transaction and that all parties acted in compliance with both Stark Law and AKS requirements.
  3. Be Intentional with All Communications: Be formal and thoughtful when communicating the financial performance of the business and its affiliated physicians. These communications should come from management and follow normal communication channels. Avoid singling out individual physicians for not meeting financial targets, as this could be seen as pressuring them to increase referrals. Instead, focus on group-level performance and metrics unrelated to referrals.
  4. Use Compliant Language: When discussing financial performance or providing updates intended to motivate behavior, always use language that aligns with regulatory requirements. Focus on objective performance metrics, such as patient satisfaction, clinical outcomes, and operational efficiency, rather than referral volumes.

Important Note: As mentioned above, be cautious not to single out individual physicians who fall below targeted or budgeted numbers of procedures or encounters. This could be seen as pressuring them to increase their referral volumes, which may create compliance risks under the AKS. Instead, focus on group-level performance and other non-referral-related metrics.

Example: Instead of saying, “Dr. Smith, your surgeries are below target, and we need to see those numbers improve,” consider saying, “The surgery center is below its revenue target for the current measurement period and has capacity for more procedures. We are working with the ASC’s physicians to identify how we can best support their patients’ needs for scheduling procedures at times most convenient for both the physician and the patient.”

Compliant vs. Non-Compliant Communication

CompliantNon-Compliant
Discuss: Valuation/compensation based on the practice/facility’s historic earnings and market comparisons.Avoid: Linking valuation or compensation to expected increases in referrals, e.g., “We may be able to get/pay more if they increased their referrals to the business/practice.”
Discuss: The target’s current income, quality metrics, and growth potential based on industry standards and historical performance.Avoid: Statements like, “If the spine physicians increase their cases by 10%, the buyer will increase its purchase price.”
Discuss: The importance of increasing capacity, patient satisfaction, and clinical outcomes in driving the success of the practice or business.Avoid: Suggesting that focusing on increasing referral volumes will lead to higher financial rewards or enhanced valuations.
Discuss: The opportunity to invest in new medical equipment or service lines, with the corresponding need to support it with internal referrals where medically appropriate and in the patient’s best interest.Avoid: Implying that the primary goal of expanding services is to generate more revenue for the affiliated physicians.

Practical Examples

  • For Physicians: Avoid suggesting that increasing referrals will improve the value of a practice, hospital, or surgery center. For example, do not say, “We need you to bring more of your patients here so that we can increase the business’s valuation.”
  • For Negotiations: When discussing the purchase or sale of a practice, hospital, or surgery center, focus solely on current financial metrics, projections based on historic performance, and market comparables. Avoid suggesting that the valuation should be adjusted based on expected increases in referrals. For instance, do not say, “Our facility is worth more because we anticipate increased referrals.”
  • For Internal Discussions: Let the management team initiate and lead conversations about valuations and expected financial performance. Discourage, if not restrict entirely, informal conversations (e.g., text messages or casual meetings) among physician-owners regarding financial performance. Do not base discussions on potential referral increases. For example, avoid statements like, “Our distributions will all go up if you send all your cases to the group and don’t send them to anyone else in the community.”

In Summary

Ensure all discussions and communications about valuations are grounded in objective financial metrics and market data, free from any pressures or incentives tied to increasing referral volumes. This approach not only aligns with Stark Law and AKS requirements but also reinforces ethical practices, reducing the risk of noncompliance and safeguarding your organization from potential legal scrutiny.

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Photo of Hal Katz Hal Katz

Hal has focused his practice on the healthcare industry during the last 20 years, representing for-profit, nonprofit and governmental entities. He has been on the front line of healthcare evolution and innovation, witnessing firsthand successes and failures at both the industry and business…

Hal has focused his practice on the healthcare industry during the last 20 years, representing for-profit, nonprofit and governmental entities. He has been on the front line of healthcare evolution and innovation, witnessing firsthand successes and failures at both the industry and business levels.

Photo of Jonathan Porter Jonathan Porter

Jonathan uses his years of experience as a federal prosecutor to guide clients through the challenges associated with government investigations and regulatory compliance.

Jonathan brings to clients a thorough working knowledge of how the U.S. government targets and pursues criminal and civil investigations,

Jonathan uses his years of experience as a federal prosecutor to guide clients through the challenges associated with government investigations and regulatory compliance.

Jonathan brings to clients a thorough working knowledge of how the U.S. government targets and pursues criminal and civil investigations, particularly those involving the healthcare industry. He is a former Assistant U.S. Attorney for the Southern District of Georgia, and in that capacity, he brought charges against numerous individuals and companies under federal law, including criminal charges of health care fraud, wire fraud, and violation of the Anti-Kickback Statute, and civil complaints alleging violations of the False Claims Act.

At the Department of Justice, Jonathan was a key member of multiple international health care fraud takedowns, in which Jonathan charged dozens of doctors, nurses, and other licensed medical professionals, along with marketers and health care executives for alleged participation in healthcare fraud schemes involving billions of dollars in false billings. In total, these charges resulted in more than 30 guilty pleas plus a conviction in the nation’s first trial of a medical professional charged as part of Operation Brace Yourself, which Jonathan first-chaired. Jonathan also was active in dozens of civil investigations brought under the False Claims Act. Jonathan resolved tens of millions of dollars in civil settlements and judgments for False Claims Act violations.

Jonathan also advises clients on a range of regulatory issues, along with the development and implementation of corporate compliance programs. He uses his unique perspective as a former AUSA, providing a prosecutor’s eye for detail in helping clients understand how DOJ and other agencies view compliance, particularly in light of the changing standards for compliance as outlined in the DOJ’s Evaluation of Corporate Compliance Programs (ECCP) and implemented in the Department’s white-collar crime enforcement initiative.