Comparison Chart of Anti-Kickback Safe Harbors and Stark Exceptions: Investment Interests/Joint Ventures in Rural or Underserved Areas

Stark
Ownership or investment interests that do not constitute a financial relationship: Rural providers

Anti-Kickback
Safe harbor for payments that constitute return on an investment interest, such as dividend or interest income, made to an investor in an entity that possesses investment interests that are held by either active or passive investors

Designated health services furnished in a rural area by a rural provider. A “rural provider” is an entity that furnishes substantially all (not less than 75 percent) of the DHS that it furnishes to residents of a rural area and, for the 18-month period beginning on December 8, 2003 (or such other period as Congress may specify), is not a specialty hospital, and in the case where the entity is a hospital, the hospital meets the requirements of §411.362 no later than September 23, 2011.

No more than 50% of the value of the investment interests of each class of investments may be held in the previous fiscal year or previous 12 month period by investors who are in a position to make or influence referrals to, furnish items or services to, or otherwise generate business for the entity.

The terms on which an investment interest is offered to a passive investor, if any, who is in a position to make or influence referrals to, furnish items or services to, or otherwise generate business for the entity must be no different from the terms offered to other passive investors.

The terms on which an investment interest is offered to an investor who is in a position to make or influence referrals to or generate business for the entity must not be related to the previous or expected volume of referrals, or the amount of business generated from the investor to the entity.

Passive investors are not required to either make referrals to, or otherwise generate business for the entity as a condition for remaining as an investor.

The entity or any investor must not market or furnish the entity's items or services to passive investors differently than to non-investors.

At least 75% of the dollar volume of the entity's business in the previous fiscal year or previous 12 month period must be derived from the service of persons who reside in an underserved area or are members of medically underserved populations.

The entity or any investor must not loan funds to or guarantee a loan for any investor who is in a position to make or influence referrals to or generate business for the entity if the investor uses any part of the loan to obtain the investment interest.

The amount of the payment to an investor in return for the investment must be directly proportional to the amount of the capital investment.