Comparison Chart of Anti-Kickback Safe Harbors and Stark Exceptions -- Referral Services

Stark
Stark exception to the referral prohibition related to compensation arrangements for referral services

Anti-Kickback
Safe harbor for payments between an individual or entity ("participant") and another entity serving as a referral source ("referral service")

The referral service does not exclude as a participant in the referral service any individual or entity who meets the qualifications for participation.

Any payment the participant makes to the referral service is assessed equally against and collected equally from all participants, and is only based on the cost of operating the referral service, and not on the volume or value of any referrals to or business otherwise generated by either party for the other party for which payment may be made in whole or in part under Medicare or a State health care program.

The referral service imposes no requirements on the manner in which the participant provides services to a referred person, except that the referral service may require that the participant charge the person referred at the same rate as it charges other persons not referred by the referral service, or that these services be furnished free of charge or at reduced charge.

The referral service makes the following five disclosures to each person seeking a referral, with each such disclosure maintained by the referral service in a written record certifying such disclosure and signed by either such person seeking a referral or by the individual making the disclosure on behalf of the referral service: a) the manner in which it selects the group of participants in the referral service to which it could make a referral; b) whether the participant has paid a fee to the referral service; c) the manner in which it selects a particular participant from this group for that person; d) the nature of the relationship between the referral service and the group of participants to whom it could make the referral; and e) the nature of any restrictions that would exclude such an individual or entity from continuing as a participant.