Commercial Payers Aggressively Pursue Financial Arrangements
Many financial arrangements between referring physicians and ancillary service providers are structured to involve “commercial-only” payers. This is (half-jokingly) reputed to be because commercial payers “don’t have badges and guns.” A key distinguishing feature between commercial insurance fraud units and the [Office of the Inspector General] and the FBI. In other words, because Stark Law and the federal Anti-Kickback Statutes (AKS) only apply to government payers, the HHS OIG would not have jurisdiction over commercial-only cases. State laws (and certain federal laws), however, continue to apply.
Under the various state versions of patient solicitation, anti-kickback and/or self-referral laws, it may permissible for a referring physician to possess an investment interest in, or maintain financial arrangement, with a provider of ancillary services. These statutes may permit, for example, partial ownership by a physician in a Clinical Laboratory Improvement Amendments (CLIA) laboratory, or a medical directorship of nursing facility to which the physician refers, if properly structured to conform to state law.