Stark Law: What ASC leaders need to know in 2023

Becker's has reported on three Stark Law changes and considerations in 2022. Here's what ASC leaders need to know going into 2023:

Fair market consideration

Understanding fair market value is critical for Stark Law compliance. Fair market value opinions are often based on benchmark data, and CMS has said that fair market value should include the application of both market area issues and physician-specific issues. Commercial reasonableness, which includes whether application of benchmark factors are defensible, is a separate concept to fair market value. 

When drawing contracts, physicians need to view both fair market value and commercial reasonableness as if advocating in front of a governmental entity, according to an Oct. 20 report from The National Law Review. If the contract is required to be defended, the analysis will need to include references and attachments to all documentation.

Physician compensation arrangement change

Hospitals and health systems need to update their physician compensation plans after CMS' recent changes to the Stark Law. Here are three things to know about the updates:

1. Physician compensation plans where productivity is above the 75th percentile could trigger review. These plans should ensure that compensation is consistent with the physician's personal productivity.

2. Compensation should also be consistent with the services performed by the practitioner. If a physician is compensated based on their advanced practice providers' work relative value units, for example, hospitals should ensure that compensation is explicitly for the services performed by the physician.

3. Indirect compensation agreements should be reviewed, because certain compensation agreements that consider APP work relative value units as physician compensation might not meet both commercial reasonableness and fair market value tests. 

Stark Law disclosure protocols

CMS is considering changes to its Stark Law voluntary self-referral disclosure protocols in an effort to streamline the process, according to a July 14 article in JDSupra from the law firm McGuireWoods. 

The voluntary protocol is a way to resolve technical violations under the physician self-referral law by submitting information to CMS about prohibited conduct. The change would limit the required disclosure information to a single form per disclosure instead of separate forms for each physician involved in a group practice. The streamlined process would allow group practices to answer the physician information form questions for all physicians collectively, rather than an individual form for each physician.

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