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CMS Proposes to Re-Revise the Stark Law’s Definition of “Indirect Compensation Arrangement”

On July 13, 2021, the Centers for Medicare and Medicaid Services (CMS) released a Proposed Rule that includes amendments to  the regulations surrounding the Physician Self-Referral Law, also known as the Stark Law. The Proposed Rule seeks to revise the definition of “indirect compensation arrangement” (ICA) to bring it back in line with the previous definition of ICA as it existed prior to the latest Stark Law rulemaking, “Modernizing and Clarifying the Physician Self-Referral Regulations” (MCR Final Rule), issued on December 2, 2020. Additionally, the Proposed Rule seeks to define the term “unit’ and the phrase “services that are personally performed” for purposes of the ICA definition.

The Stark Law generally prohibits physicians from referring designated health services (DHS) payable by Medicare or Medicaid to an entity with which the physician (or an immediate family member) has a financial relationship unless an exception is met. With the MCR Final Rule, CMS introduced a further definitional requirement to the definition of ICA: that the “individual unit of compensation” received by the physician (or an immediate family member) must either (i) not be fair market value; or (ii) include the physician’s referrals as a variable that impacts compensation. By adding this definitional requirement, the MCR Final Rule effectively further narrowed the regulatory definition of ICA. In the Proposed Rule, CMS states that the MCR Final Rule inadvertently omitted language from the ICA definition which would have ensured that a subset of potentially abusive financial relationships would have continued to satisfy the definition of ICA. Under the Proposed Rule, the ICA definitional requirement added by the MCR Final Rule would be effective only if the compensation received by the physician would be for the physician’s own personally performed services.

In response to providers’ concerns about the scope and practical application of the phrase “individual unit of compensation,” CMS seeks to provide some clarity by defining the phrase in the Proposed Rule. CMS proposes to define an individual unit either in terms of service, where all compensation is based solely on the service provided, or in terms of time, in all other cases, where any one basis of the physician’s compensation is time-based. CMS also proposes to introduce regulatory language to aid in the application of the ICA definition when the physician receives compensation for personally performed services by stating services personally performed by a physician “do not include services that are performed by any person other the physician ….” At this time, it is unclear whether this proposed language would include services performed by an employee, but provided incident to the physician’s personally performed services. The Proposed Rule is open for public comment until September 13, 2021.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding the practical implications of CMS’ proposed rule and the Stark Law. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or

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