Value-Based Payments Under MACRA –
Tension with Fraud & Abuse Laws (Part Two of a Two-Part Series)

In response to the advent of value-based reimbursement (VBR), most recently through the implementation of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA),1 which reimbursement models rely on incentivizing providers to achieve better outcomes at lower cost, hospitals are increasingly seeking closer relationships with physicians, including practice acquisitions, direct employment, provider services agreements (PSAs), co-management, and joint venture arrangements.2 Corresponding with this growing trend toward hospital-physician alignment, and specifically toward vertical integration, i.e., the “integration of providers at different points along the continuum of care, such as a hospital partnering with a skilled nursing facility (SNF) or a physician group,”3 there has been increased federal, state, and local regulatory oversight regarding the legal permissibility of these arrangements.4 Most notably, there has been more intense regulatory scrutiny related to the Anti-Kickback Statute (AKS) and the Stark Law, especially as these fraud and abuse laws relate to potential liability under the False Claims Act (FCA).5 Both the Stark Law and AKS require that any consideration paid to physicians not exceed the range of Fair Market Value (FMV) and be deemed commercially reasonable.6 The application of these fraud and abuse laws has, at times, been at odds with the goals of healthcare reform. Specifically, the discord between the objectives of fraud and abuse laws, and the objectives of VBR models such as those promulgated through MACRA, reflect a disjointed approach to healthcare reform by numerous federal agencies, including the Department of Health and Human Services (HHS), the Office of Inspector General (OIG) of HHS, and the Department of Justice (DOJ), whereby “the left hand doesn’t know what the right hand is doing.

A comprehensive understanding of this tension between the fraud and abuse laws enforced by the DOJ, and the VBR models being implemented by HHS, warrants, in addition to an examination of MACRA (which was conducted in the first installment of this two-part series),7 a review of the threshold of commercial reasonableness. While definitions of the commercial reasonableness threshold are similar among the various federal agencies responsible for enforcing regulations affecting the healthcare industry, there are subtle nuances between each agency’s interpretation of the term “commercial reasonableness.” The Department of Health and Human Services (HHS) has interpreted the term “commercially reasonable” to mean an arrangement which appears to be “…a sensible, prudent business agreement, from the perspective of the particular parties involved, even in the absence of any potential referrals.8 Additionally, HHS’s Stark II, Phase II commentary suggests that:

An arrangement will be considered ‘commercially reasonable’ in the absence of referrals if the arrangement would make commercial sense if entered into by a reasonable entity of similar type and size and a reasonable physician of similar scope and specialty, even if there were no potential DHS [designated health services] referrals.9

The Office of the Inspector General (OIG) and Internal Revenue Service (IRS) have also provided guidance in defining commercial reasonableness. The OIG has defined a commercially reasonable transaction as one in which …the aggregate services contracted do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purpose of the service.”10

Additionally, IRS guidance regarding commercial reasonableness may be derived from IRS pronouncements on reasonable compensation, including:

  1. The 1993 Exempt Organizations IRS text titled “Reasonable Compensation,” which states that “reasonable compensation is…the amount that would ordinarily be paid for like services by like organizations in like circumstances;”11
  2. Chapter 2 of Publication 535, titled “Business Expenses,” which states “…reasonable pay is the amount that a similar business would pay for the same or similar services;”12 and,
  3. Federal Regulations on “Excess Benefit Transactions,” which state, “reasonable compensation [is]…the amount that would ordinarily be paid for like services by like enterprises (whether taxable or tax-exempt) under like circumstances.”13

It should be noted that no IRS pronouncement defining reasonable compensation specifically addresses the healthcare industry. However, these factors provide indications as to the manner of assessing commercial reasonableness thresholds in an anticipated healthcare transaction.

Further guidance indicating that, beyond the individual transaction elements, the entirety of a subject transaction should be reviewed in the aggregate (inclusive of all elements for which consideration is given) is found in the Personal Services exception of the Stark Law. This exception requires that “[t]he aggregate services contracted for do not exceed those that are reasonable and necessary for the legitimate business purposes of the arrangement(s).14

To assess the commercial reasonableness of a proposed transaction, the valuation analyst, in light of these definitions, should begin with certain prerequisite elements, including:

  1. Whether each element of a prospective transaction does not exceed FMV; and,
  2. That the prospective transaction is a sensible, prudent business arrangement even in the absence of referrals.15

While the analysis of the threshold of commercial reasonableness is separate and distinct from the development of a FMV analysis, requiring consideration of different aspects of the property interest included in the transaction, they are related thresholds, and the consideration and analysis of one threshold does not preclude the analysis of the other threshold.  For example, a necessary condition for an anticipated transaction to be commercially reasonable is that each element of that transaction must not exceed FMV.  However, even in the event that each element of an anticipated transaction does not exceed FMV, the anticipated transaction may still not be commercially reasonable, in that it does not meet the remaining analytical hurdles of a commercial reasonableness analysis.  Consequently, a finding that an enterprise, asset, or service meets the FMV threshold is not, in and of itself, sufficient to establish commercial reasonableness.16

After ensuring that each transactional prerequisite of the prospective transaction is met, further analysis of both the qualitative and quantitative aspects of the proposed transaction is warranted to determine its commercial reasonableness.

The steps involved in the qualitative assessment of commercial reasonableness focus on determining the acquirer’s business purpose(s), and how the anticipated transaction assists in meeting that purpose. The specific qualitative thresholds are as follows:

  1. Is the integration transaction necessary to accomplish the business purpose of the client;
  2. Does the nature and scope of the underlying elements of the integration transaction meet the business needs of the client;
  3. Does the enterprise and organizational elements of the integration transaction make business sense to the client;
  4. Does the quality, comparability, and availability of the underlying elements of the integration transaction make business sense for the client;
  5. Are there sufficient ongoing assessments, management controls, and other compliance measures in place related to the underlying elements of the integration transaction; and,
  6. Is the transaction otherwise legally permissible?17

In addition to the qualitative analysis, a quantitative analysis of both the discrete elements and the entirety of the anticipated transaction should be undertaken. This analysis, which is referred to as a post-transaction financial feasibility analysis, takes into account all consideration to be paid by purchasers and lessees to sellers and lessors. The elements of the post-transaction financial feasibility analysis are not intended to be considered in isolation; rather, the analyst should consider both the individual merits of each analytical technique and the relationships between the analytical techniques employed.

When performing a cost/benefit analysis for a particular buyer, a valuation analyst may also wish to consider the value metrics, which result from the application of one or more of the following analytical methods, to serve as a basis for a commercial reasonableness opinion related to an anticipated transaction:

  1. Net present value (NPV) analysis, which examines the total expected risk-adjusted future net economic benefits (e.g., present value of the future net cash flows) anticipated to be generated from the operation of the subject property interest net of the initial economic expense burdens (e.g., initial cash outlays) necessary to acquire the property interest;18
  2. Internal rate of return (IRR) analysis, which calculates the discount rate necessary to result in a zero net present value, which rate can be compared to an investors required rate of return for a specific property interest to determine the viability of the investment;19
  3. Average accounting return (AAR) analysis, which determines the average of the net income arising from the assets or services to be acquired in the anticipated transaction for each discrete accounting period, divided by the book value of those subject property interest(s) acquired for each of the corresponding accounting periods;20
  4. Payback period analysis, which calculates the number of discrete periods necessary for “the cumulative forecasted [undiscounted] cash flow [to] equal the initial investment;”21 and,
  5. Discounted payback period analysis, which is similar to a payback period analysis, calculates the number of discrete periods “…until the sum of the discounted cash flow is equal to the initial investment” [emphasis added].22

Each of the value metrics that results from the cost/benefit analyses described above should be considered within the context of the qualitative factors of the commercial reasonableness analysis.23  This is especially true when the cost/benefit analysis reflects a financial (cash) loss, as a transaction may still be commercially reasonable after the non-monetary benefits that may arise from the anticipated transaction are taken into consideration.  For example, the benefits produced by a transaction that results in an expansion into new geographic areas and/or new service lines or an improvement in the access to technology and/or innovation may provide substantial evidence of a prudent business decision, i.e., commercial reasonableness.24

Government regulators (more specifically, the OIG and the U.S. Department of Justice [DOJ]) have, in some cases, challenged vertical integration transactions under various federal and state fraud and abuse laws, partly basing their arguments on the concept, termed the Practice Loss Postulate (PLP), that the acquisition of a physician practice, which then operates at a “book financial loss”, is dispositive evidence of the hospital’s payment of consideration based on the volume and/or value of referrals.25 This misguided theory overly simplifies the commercial reasonableness analysis, such that the threshold, in many instances, has been “contorted to cap a physician’s compensation at levels that he or she could generate if he or she remained an independent seller of physician services, even if part of that compensation is paid for supervising non-physician members of a multidisciplinary team in the efficient delivery of quality care.”26

This tension between the interpretation of the commercial reasonableness threshold by regulators and the application of MACRA27 is partly because the goals of value-based reimbursement (VBR) and fraud and abuse laws are fundamentally at odds with one another. MACRA has furthered the healthcare industry’s transition to VBR, which payment models seek to reduce the overutilization of healthcare services by incentivizing the provision of efficient, evidence-based care to reduce healthcare costs (in part by utilizing technologies, such as big data analysis techniques and artificial intelligence), through the sharing of savings and losses by the providers and CMS.28  In order to meet these goals and take advantage of the VBR reforms, many healthcare organizations are considering various alignment strategies that amass the needed knowledge, skills, and abilities required to provide for the full continuum of a patient episode of care.29

As mentioned above, one result of provider alignment in pursuit of VBR goals, particularly when aligning through employment arrangements with hospitals and health systems, may be that hospitals or health systems sustain practice losses.30 This may be due to a number of reasons, including: (1) encountering a more adverse payor mix in a hospital setting; (2) needing to pay more competitive salaries to employed providers; and, (3) the treatment of ancillary services by the hospital or health system (i.e., treating vertically integrated physician practices as stand‑alone economic enterprises, which, when stripped of their ASTC revenue, and relying solely on professional services, i.e., work relative value unit [wRVU] related revenue, and paying physicians at fair market value, are almost certain to generate “book financial losses”).31

This tension has been recognized by lawmakers and other healthcare stakeholders, with hearings being held on Capitol Hill in 2015 and 2016 related to potential modifications to the Stark Law.32 House and Senate committees solicited input from industry leaders related to Stark law challenges, such as its integration with MACRA.33 As noted in the white paper published by the Senate Finance Committee Majority Staff:

The Stark law has become increasingly unnecessary for, and a significant impediment to, value-based payment models that Congress, CMS, and commercial health insurers have promoted. The risk of overutilization, which drove the passage of the Stark law, is largely or entirely eliminated in alternative payment models.”34

This sentiment was echoed by Thomas P. Nickels, Executive Vice President of Government Relations and Public Policy for the American Hospital Association:

As interpreted today, the two ‘hallmarks’ of acceptability under the Stark law – fair market value and commercial reasonablenessare not suited to the collaborative models that reward value and outcomes.”35 [Emphasis added.]

Troy A. Barsky, Esq.36 testified that Congress should amend the Stark Law by defining commercial reasonableness,37 stating:

While a number of important exceptions have a requirement that the arrangement be commercially reasonable without taking into account Medicare referrals, the term ‘commercial reasonableness’ is not clearly defined anywhere. Under current law, there is confusion over whether a hospital’s subsidy of a physician’s practice is commercially reasonable even where the physician’s compensation is in the range of FMV. I recommend either that this standard be removed completely or that the statute be amended to add a definition of commercial reasonableness e.g., that the items or services are of the kind and type of items or services purchased or contracted for by similarly situated entities and are used in the purchaser’s business, regardless of whether the purchased items or services are profitable on a standalone basis.”38 [Emphasis added]

These comments indicate an understanding by many healthcare industry stakeholders of the inherent failure of the PLP’s argument regarding commercial reasonableness, namely, that financial (cash) losses on vertically integrated physician practices do not contraindicate the threshold of commercial reasonableness. Hospitals routinely invest in initiatives, service lines, and uses of capital that do not immediately (or may never) yield direct financial (cash) returns on, or returns of, their investment, such as:

  1. Emergency rooms, trauma services, pathology labs, and neonatal intensive-care units (NICU);
  2. Research labs and clinical studies;
  3. Principal research investigators, medical directors, and other types of physician executives;
  4. Education of residents; and,
  5. Artwork and other aesthetics with the aim of therapeutic benefits to patients.39

However, these investments may allow hospitals to reap other forms of utility aside from financial (cash) gains, e.g., the avoidance of cost or the generation of social benefits. Therefore, despite the lack of immediate or direct financial (cash) return on, or return of, certain investments by healthcare entities, these services may nevertheless satisfy the threshold of commercial reasonableness. For example, the investment may be “necessary” for the continued operation of the healthcare entity, or may satisfy a “business purpose” of the healthcare enterprise apart from obtaining referrals.40

In addition to these generally discordant objectives of MACRA and fraud and abuse laws, MACRA may present additional questions through the commercial reasonableness analysis in the evaluation of certain physician compensation arrangements, e.g., whether or not it is commercially reasonable to compensate or share MACRA reimbursement increases with physicians who are not directly responsible for improving quality.41 Further, in order to encourage participation, CMS and the OIG have issued certain fraud and abuse waivers for advanced APMs, but each model has a different set of waiver rules, with which rules must be strictly complied to guarantee protection from fraud and abuse violations.42 Because these waivers have been largely untested, some providers may still seek to remain compliant with fraud and abuse laws as a “fall back” measure.

In summary, the current trend in the regulatory application of the PLP to challenge healthcare VBR models that incentivize vertical integration in healthcare, e.g., those models promoted by MACRA, is misguided and imprudent. The PLP represents a less than rational interpretation and application of the commercial reasonableness threshold, in that it focuses its analysis solely on the financial quantitative factors, e.g., monetary (cash) returns, and ignores the qualitative factors, e.g., the avoidance of cost, and the generation of social benefit. Should the PLP continue to evolve into accepted “legal doctrine,” and ultimately the “law of the land,” the result may be to impede the development of innovative new structures of payment models to the extent that it would cause significant harm to the healthcare economy. This may lead regulators, legislators, legal professionals, and analysts to lose sight of the overall benefits of vertical integration; in essence, they are misled by a myopic fixation on the immediacy of red ink derived from a compartmentalized, stand-alone segment of the overall enterprise, such that they “cannot see the forest for the trees.” This potential impediment to sound decision-making on policy and case law is particularly troubling, given the acute need to improve the quality, accessibility, and efficiency of the U.S. healthcare delivery system, which MACRA attempts to do.43 If there was ever a time for the legal and economic communities to collaborate to address these important issues impacting the U.S. economy, and more particularly the U.S. healthcare delivery system, it would be now.


For more information on MACRA, see the first installment of this two-part series, entitled, “Value-Based Payments Under MACRA – Outlook,” Health Capital Topics, Vol. 10, Issue 4, May 2017, https://www.healthcapital.com/hcc/newsletter/04_17/PDF/MACRA.pdf (Accessed 5/23/17).

“2014 Global Health Care Outlook: Shared Challenges, Shared Opportunities” By Deloitte Touche Tohmatsu Limited, New York City, NY, 2014, p. 13; “The 5 C's of 2013 Health Care” Deloitte Touche Tohmatsu Limited, 2012, http://www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_chs_MondayMemo_2013Healthcare_%205Cs_021313.pdf (Accessed 6/4/14); "Co-Management Arrangements: Common Issues with Development, Implementation and Valuation" By Ann S. Brandy, et. al., American Health Lawyers Association, May 2011, http://www.healthlawyers.org/Events/Programs/Materials/Documents/AM11/hutzler.pdf (Accessed 6/5/14); “Top 10 Factors to Consider When Exploring Joint Ventures as an Affiliation Strategy” By Jonathan Spees, The Camden Group, June 2013, http://www.thecamdengroup.com/thought-leadership/top-ten/top-10-factors-to-consider-when-exploring-joint-ventures-as-an-affiliation-strategy/ (Accessed 6/5/14).

“The Value of Provider Integration” American Hospital Association, March 2014, http://www.aha.org/content/14/14mar-provintegration.pdf (Accessed 1/14/16) p. 2.

See “Health Care Fraud and Abuse Control Program Report” U.S. Department of Health and Human Services and U.S. Department of Justice, https://oig.hhs.gov/reports-and-publications/hcfac/ (Accessed 5/18/17).

"Health Care Fraud and Abuse Control Program: Annual Report for FY 1997" By The Department of Health and Human Services & The Department of Justice, Report for the United States Congress, Washington, DC, 1998; "Health Care Fraud and Abuse Control Program: Annual Report for FY 2007" By The Department of Health and Human Services & The Department of Justice, Report for the United States Congress, Washington, DC, 2008; "Health Care Fraud and Abuse Control Program: Annual Report for FY 2013" By The Department of Health and Human Services & The Department of Justice, Report for the United States Congress, Washington, DC, 2014.

"Criminal Penalties for Acts Involving Federal Health Care Programs" 42 U.S.C. § 1320a-7b(b)(3)(B) (2012); "Limitations on Certain Physician Referrals" 42 U.S.C. § 1395nn(a)(1) (2012); “Personal Services and Management Contracts” 42 C.F.R. § 1001.952(d) (2007); “Bona Fide Employment Relationships” 42 U.S.C. § 1395nn(e)(2) (2010); “General Exceptions to the Referral Prohibition Related to Both Ownership/Investment and Compensation” 42 C.F.R. § 411.355(e)(ii)(B) (2014); “Exceptions to the Referral Prohibition Related to Compensation Arrangements” 42 C.F.R. § 411.357 (2010); “FMV: Analysis and Tools to Comply With Stark and Anti-kickback Rules,” By: Robert A. Wade, Esq. and Marcie Rose Levine, Esq., Audio Conference, HCPro, Inc.: Marblehead, MA, March 19, 2008, http://content.hcpro.com/pdf/content/207583.pdf (Accessed 10/29/15), p. 6, 48.

“Value-Based Payments Under MACRA – Outlook” Health Capital Topics, Vol. 10, Issue 4, May 2017, https://www.healthcapital.com/hcc/newsletter/04_17/PDF/MACRA.pdf (Accessed 5/23/17).

“Medicare and Medicaid Programs: Physicians’ Referrals to Health Care Entities with which They Have Financial Relationships”, 63 Fed. Reg. 1700 (1/9/98).

“Medicare Program: Physicians’ Referrals to Healthcare Entities with which They Have Financial Relationships (Phase II)”, 69 Fed. Reg. 16093 (3/26/04).

“Subpart C: Permissive Exclusions – Exceptions” 42 C.F.R. § 1001.952 (2012).

"Reasonable Compensation” By Jean Wright and Jay H. Rotz, Exempt Organizations Continuing Professional Education (1993), p. 3, http://www.irs.gov/pub/irs-tege/eotopici93.pdf (Accessed 9/4/2012).

"Publication 535 - Business Expenses", Internal Revenue Service, 3/10/14, p. 7, http://www.irs.gov/pub/irs-pdf/p535.pdf (Accessed 11/7/14).

"Excess Benefit Transaction", 26 CFR § 53.4958-4(b)(1)(ii) (2012).

“Exclusions from Medicare and Limitations on Medicare Payment” 42 C.F.R. § 411.357(d)(1)(iii) (2012).

Reg. 16093, March 26, 2004, 63 Fed.

“Healthcare Valuation: The Financial Appraisal of Enterprises, Assets, and Services,” By Robert James Cimasi, MHA, ASA, FRICS, MCBA, CVA, CM&AA, Vol. 2, Hoboken, NJ: John Wiley & Sons, Inc., 2014, p. 937-938.

Ibid, p. 941. For a detailed discussion on the qualitative factors of the commercial reasonableness analysis, see “Threshold of Commercial Reasonableness: The Qualitative Analysis,” Health Capital Topics, Vol. 7, Issue 11, December 2014, http://www.healthcapital.com/hcc/newsletter/12_14/QUALITATIVE.pdf (Accessed 1/12/15).

“Fundamentals of Corporate Finance,” By Stephen Ross, et al., Second Edition, Boston, MA: Irwin, 1993, p. 220.

“Principles of Corporate Finance,” By Richard Brealey, et al., Ninth Edition, New York, NY: McGraw-Hill Irwin, 2008, p. 122.

Ross, 1993, p. 231.

Brealey, 2008, p. 120.

Ibid, p. 228.

For a detailed discussion on the qualitative factors of the commercial reasonableness analysis, see “Threshold of Commercial Reasonableness: The Qualitative Analysis,” Health Capital Topics, Vol. 7, Issue 11, December 2014, http://www.healthcapital.com/hcc/newsletter/12_14/QUALITATIVE.pdf (Accessed 1/12/15); or, “Healthcare Valuation: The Financial Appraisal of Enterprises, Assets, and Services,” By Robert James Cimasi, MHA, ASA, FRICS, MCBA, CVA, CM&AA, Vol. 2, Hoboken, NJ: John Wiley & Sons, Inc., 2014, p. 940-963.

See further examples described in Health Capital Consultants, “Threshold of Commercial Reasonableness: The Qualitative Analysis,” December 2014; “Hospital Mergers: Why they Work, Why they Don’t,” By Larry Scanlan, Chicago, IL: Health Forum Inc., 2010, p. 27; “Mergers, Acquisitions, and Corporate Restructurings” By Patrick Gaughan, Hoboken, NJ: John Wiley & Sons, Inc., 2011, p. 14; “Middle Market M&A: Handbook for Investment Banking and Business Consulting,” By Kenneth Marks, Hoboken, NJ: John Wiley & Sons, Inc., 2012, p. 28; “IRS Revenue Ruling 69-545, 1969-2 C.B. 117,” Internal Revenue Service, http://www.irs.gov/pub/irs-tege/rr69-545.pdf (Accessed 1/22/14); “Healthcare Valuation: The Financial Appraisal of Enterprises, Assets, and Services,” By Robert James Cimasi, MHA, ASA, FRICS, MCBA, CVA, CM&AA, Vol. 2, Hoboken, NJ: John Wiley & Sons, Inc., 2014, p. 183.

“United States ex rel. Drakeford v. Tuomey Healthcare System, Inc.” 675 F.3d 394, 407 (4th Cir. 2012); “United States ex rel. Parikh v. Citizens Medical Center” Case No. 6:10-cv-00064, (S.D. TX. September 20, 2013), Memorandum and Order, p. 27-28; “United States ex rel. Reilly v. North Broward Hospital District, et al.” Case No. 10-60590-CV (S.D.Fla. September 11, 2012), Relator’s Third Amended Complaint Under Federal False Claims Act, p. 31; “United States ex rel. Payne et al. v. Adventist Health System et al.” Case No. 3:12cv856-W (W.D.N.C. February 13, 2013), Relator’s Amended Complaint, p. 56; “Health System Practice ‘Losses’ Make Headlines, Plaintiffs Make New Stark ‘Law’” By Eric B. Gordon and Daniel H. Melvin, BNA’s Health Care Fraud Report, Bloomberg BNA, November 25, 2015, http://www.mwe.com/files/Publication/a1a5d17c-3c79-4380-baef-0d11822334a1/Presentation/PublicationAttachment/5bb1e6ca-6491-4907-9a57-1049c2f3eec6/Gordan-Melvin.pdf (Accessed 12/15/15).

American Hospital Association Letter to U.S. Senate, By Thomas P. Nickels, Letter to The Honorable Orrin Hatch and The Honorable Ron Wyden, re Stark Law, January 29, 2016.

For more information on MACRA, see the first installment of this two-part series, entitled, “Value-Based Payments Under MACRA – Outlook,” Health Capital Topics, Vol. 10, Issue 4, May 2017, https://www.healthcapital.com/hcc/newsletter/04_17/PDF/MACRA.pdf (Accessed 5/23/17).

“MACRA and the Giant Move into Value-based Payment” By Maggie Van Dyke, Hospitals & Health Networks, December 13, 2016, http://www.hhnmag.com/articles/7832-the-giant-move-into-value-based-payment-via-macra (Accessed 5/23/17).

“Remaining Stark-Compliant with ‘Practice Losses’” and Ancillary Services” By Daniel W. Kiehl, JD, LLM, Coker Group, November 2016, http://cokergroup.com/wp-content/uploads/2016/11/Remaining-Stark-Compliance-with-Practice-Losses-and-Ancillary-Services_November-2016.pdf (Accessed 5/3/17).

Ibid.

“Remaining Stark-Compliant with ‘Practice Losses’” and Ancillary Services” By Daniel W. Kiehl, JD, LLM, Coker Group, November 2016, http://cokergroup.com/wp-content/uploads/2016/11/Remaining-Stark-Compliance-with-Practice-Losses-and-Ancillary-Services_November-2016.pdf (Accessed 5/3/17). Why Hospital-Owned Medical Groups Lose Money” By David N. Gans, MSHA, FACMPE, MGMA Connexion, April 2012, http://www.mgma.com/Libraries/Assets/Practice%20Resources/Publications/MGMA%20Connexion/2012/Data-Mine-Why-hospital-owned-medical-groups-lose-money---MGMA-Connexion-magazine-April-2012.pdf (Accessed 3/29/2016), p. 20.

For more information on these hearings, please see the article entitled, “Stark Law Reform Debated by Senate Committee” Health Capital Topics, Vol. 9, Issue 8 (August 2016).

“Lawmakers Consider Changes to Physician Self-Referral Law” By James Swann, Bloomberg BNA, February 1, 2016, https://www.bna.com/lawmakers-consider-changes-n57982066790/ (Accessed 5/3/17).

“Why Stark, Why Now?” Senate Finance Committee Majority Staff (2016), p. 2, 15-16.

American Hospital Association Letter to U.S. Senate, By Thomas P. Nickels, Letter to The Honorable Orrin Hatch and The Honorable Ron Wyden, re Stark Law, January 29, 2016.

Mr. Barsky is a noted private healthcare attorney with Crowell & Moring LLP, and previously served as the Director of the Division of Technical Payment Policy at CMS for four of his eleven years at HHS.

Congressional Record Vol. 162, no. 112 (July 12, 2016), p. S5010; “Examining the Stark Law: Current Issues and Opportunities” U.S. Senate Committee on Finance, July 12, 2016, http://www.finance.senate.gov/hearings/examining-the-stark-law-current-issues-and-opportunities (Accessed 8/31/16).

“Testimony Before the Committee on Finance” Troy A. Barsky, Crowell & Moring LLP, July 12, 2016, http://www.finance.senate.gov/imo/media/doc/12jul2016Barsky.pdf (Accessed 7/20/2016).

“Healthcare Valuation: The Financial Appraisal of Enterprises, Assets, and Services” By Robert James Cimasi, MHA, ASA, FRICS, MCBA, AVA, CM&AA, John Wiley & Sons: Hoboken, NJ, 2014, Volume 2, p. 321, 946; “Antitrust Implications of Competition Between Physician-Owned Facilities and General Hospitals: Competition or Exclusion?” By William E. Berlin, Esq., The Health Lawyer, Volume 20, No. 5 (June 2008), p. 9; “Helping Patients Heal Through the Arts” By Amanda Gardner, CNN, July 5, 2013, http://www.cnn.com/2013/07/05/health/arts-in-medicine/ (Accessed 8/18/14) p. 1.

“OIG Supplemental Compliance Program Guidance for Hospitals” Federal Register, Vol. 70, No. 19 (January 31, 2005) p. 4866. 

“3 Big Themes at the 2017 AHLA Physicians and Hospitals Law Institute” By Christy Street” HORNE, February 3, 2017, http://blog.hornellp.com/healthcare/3-big-themes-at-the-2017-ahla-physicians-and-hospitals-law-institute (Accessed 5/3/17).

“Fraud and Abuse Waivers” Centers for Medicare & Medicaid Services, https://www.cms.gov/medicare/fraud-and-abuse/physicianselfreferral/fraud-and-abuse-waivers.html (Accessed 5/19/17); “3 Big Themes at the 2017 AHLA Physicians and Hospitals Law Institute” By Christy Street, HORNE, February 3, 2017, http://blog.hornellp.com/healthcare/3-big-themes-at-the-2017-ahla-physicians-and-hospitals-law-institute (Accessed 5/3/17).

“Mirror, Mirror on the Wall: How the Performance of the U.S. Health Care System Compares Internationally” By Karen Davis et al., The Commonwealth Fund, June 2014, http://www.commonwealthfund.org/~/media/files/publications/fund-report/2014/jun/1755_davis_mirror_mirror_2014.pdf (Accessed 5/27/2016).

Healthcare Valuation Banner Advisor's Guide to Healthcare Banner Accountable Care Organizations Banner