Physicians are eyeing Stark law as the Department of Justice doubles down on enforcement, with an uptick in complaints-in-intervention and Stark-related settlements.
Five physician leaders joined Becker's to discuss the Stark law issues concerning them currently.
Question: What Stark law issues are concerning at the moment? Why?
Editor's note: This response was edited lightly for clarity and length.
Shakeel Ahmed, MD. Gastroenterologist and CEO of Atlas Surgical Group (St. Louis): There is a twofold answer here. First, these are very complex laws governing the intricate rules between physicians and designated health services. Unintentional violations are possible by this group of individuals who clearly have no legal background, and even the most minor of these violations can result in severe penalties.
Second, while Stark laws don’t apply to ASCs, certain designated services are very closely associated with the outpatient surgery business, including prosthetic supplies and the lab industry, and there currently is no safe middle ground for physicians to be able to own and have an association with all these facets of the health business without constantly having to balance work and the threat of a misstep.
Mark Dawson, MD. Senior Partner at Acadiana Family Medical Associates (Rayne, La.): It should be against Stark law for dermatologists to perform pathology services such as dermatopathology. It is a conflict of interest because the more biopsies they perform as dermatologists, the more they can charge for reading the slide. Pathology should be performed by pathologists only. The same is true concerning the technical component (the preparation of the tissues) since GI groups often own their own pathology labs (although they do allow pathologists to read the slides) .
Matt Mazurek, MD. Assistant Professor of Anesthesiology at the Yale School of Medicine (New Haven): In the last three years there have been several Stark law revisions, and the American Medical Association has supported these changes. For example, determining whether compensation under a specific arrangement is within fair market value is a requirement for many of the exceptions or safe harbors that may be used under the Stark law or anti-kickback statute. Understanding how FMV is defined is of utmost importance. However, for many physicians, healthcare executives and healthcare valuators, the regulations have historically generated ambiguity surrounding FMV. To minimize confusion, CMS redefined FMV in the Stark final rule to be the value in an arm’s-length transaction, consistent with the general market value of the subject transaction. The various formulas CMS now uses to determine general market value remain complex.
Physicians need to understand the importance of practicing while adhering to the new Stark law changes. The recent rules changes have increased the complexity of financial relationships between physicians and other entities. As an employee, it remains the responsibility of the physician and employer to ensure the contract is compliant. Now, more than ever, hiring legal counsel to examine contracts and other financial arrangements is a necessity to avoid potential legal and regulatory compliance violations.
Opinions expressed by Dr. Mazurek are his own.
James McCoughlin, MD. Orthopedic Surgeon at Ivy Spine and Orthopedics (Panama City, Fla.): Stark law legislation has become a hydra that has grown more heads with every attempt by the government to fix a specific ill. At some point the government must admit that its tinkering in healthcare has failed and the government should get out of the healthcare delivery business, and simply be a payer if Medicare or Medicaid avenues of care are to remain. Delivery of actual care should be returned to physicians, nurses and other healthcare professionals with the bean-counters reporting to the clinicians, rather than the reverse.
Mark Thoma, MD. Chair of Anesthesia with The Permanente Medical Group (San Francisco): One of the larger concerns I have about Stark laws is the impact on integrated and quality care. Stark laws can limit referral patterns to appropriate specialists due to financial or potential financial relationships. This can stifle collaboration which is not good for the patient and can impact innovations that can improve quality and/or reduce costs in overall healthcare delivery. While the concept of Stark laws is great — to prevent self-referrals and conflicts of interest — they need to be more permissive to allow for innovations in patient care.