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Furthermore, we cannot forge a safe harbor under 42 C.F.R. §1001.952(p), because Sundown Community Hospital is not a physician's group (Altshuler, Creekpaum, & Fang, 2008). Finally, the proposed arrangement does not fall within the safe harbor provided for investments in group practice because the hospital would not meet the criteria of: equity interests held by licensed professionals; equity interests being in the entire practice; unified business with unified decision making and pooling of financial interests; and revenues from ancillary services coming only from in-office ancillary services (Altshuler, Creekpaum, & Fang, 2008). Consequently, the proposed arrangement would fall outside of the safe harbor provisions of the Medicaid Anti-Kickback Statutes; however, the proposed arrangement may fall within the exceptions to the Stark Statute.
Reviewing the Stark Statute, no physician may refer Medicare or Medicaid patients to an entity (here, the hospital) to which he/she has a financial relationship unless the transaction falls under one of the exceptions (Altshuler, Creekpaum, & Fang, 2008). The proposed joint venture does not meet any of the exceptions to the Stark Statute that might allow Medicaid/Medicare referrals, such as: ownership/investment interests and compensation arrangements; ownership only or investment interests only; compensation arrangements only. Furthermore, since the Stark Statute is a "strict liability" Statute requiring...
Their chief contribution, given the composition of their practice, would be Medicare patients and it does not appear that the proposed arrangement would satisfy the requirements of either or both statutes. An alternative might be contract that does not involve joint ownership/investment interests in which the contract clearly enunciates that the parties are not entering the agreement to induce referrals or solicit remuneration in exchange for Medicare/Medicaid referrals.
3. Conclusion
The proposed joint venture would fall outside of the safe harbor provisions of the Medicaid Anti-Kickback Statutes and the exceptions to the Stark Statute. Consequently, I would advise the board to avoid the proposed joint venture and to enter into a contract that does not involve joint ownership/investment interests and clearly enunciates that the parties are not entering the agreement to induce referrals or solicit remuneration in exchange
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