Reasonable Minds Can Disagree!

I participate (mostly as a lurker) on a listserv for health law issues through the American Health Lawyers Association. It’s interesting to see some of the complex legal questions that are asked and the knowledge of the community as a whole. It’s awesome that a group of professionals can work together to help each other find answers to their legal situations.

Warm fuzzies aside, health care law is a complex animal and many times an answer is not particularly clear. For example, here is a question recently asked regarding Stark Law:

Q: Client wants to pay employed or contracted physician X% of global fee for certain services, which fee includes both the professional component and technical/facility component. The % is calculated to reflect the value of the professional component only. Would such a payment structure be deemed to vary with the volume or value of referrals under Stark because the % is based on global feel, which includes the technical/facility fee?

There were two responses (emphasis is added):

I rarely see a percentage of a global fee, even if intended to represent the professional only component, in an independent contractor arrangement. I see this more often in employment relationships where the parties have the advantage of the more flexible Stark exception and anti-kickback safe harbor for employment compensation, which do not require the “fixed” fee that the personal services exception and safe harbor require.

And the next:

I commonly see percent of global fee arrangements for independent contractors for certain types of services, such as radiology reads. I do not commonly see these for employed physicians.

In case you didn’t catch it, one lawyer said the arrangement is more common in employee relationships and the other said it is more common in independent contractor relationships. So these attorneys might likely provide advise that is the complete opposite from one another. And it’s also possible that they could each be right, as long as the appropriate Stark exception or AKS safe harbors are applicable.

The point of all of this is that reasonable minds can reach different conclusions on the same question.