What Is Real Estate Compliance?
Healthcare real estate is unique. The Stark Law,[4] the Anti-Kickback Statute,[5] the False Claims Act,[6] and a myriad of other healthcare statutes and regulations create a complex regulatory environment in which healthcare providers must operate daily. A course of action that may be perfectly acceptable in any other type of real estate transaction could, in the context of healthcare real estate, result in serious regulatory violations and expose healthcare providers to significant liability.
Real estate transactions can be subdivided into two broad, general categories: lease transactions and purchase and sale transactions. Although purchase and sale transactions can and do expose healthcare providers to regulatory liability, lease transactions present greater compliance risk for two reasons. First, healthcare providers enter into far more lease transactions with referral sources than purchase and sale transactions. Second, lease transactions are long-term arrangements and, as a result, require constant monitoring and enforcement of their terms to avoid compliance infractions. Consequently, this article will focus on real estate lease arrangements with referral sources and outline the governing laws, common compliance risks with these arrangements, ways to mitigate compliance risks, and compliance resources for healthcare providers.
Risk Area Governance
To avoid violating the Stark Law, lease arrangements between referring physicians and healthcare providers must comply with the rental of office space exception under the Stark Law (Lease Exception), which consists of the following elements:
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The lease arrangement must be in writing, signed by all parties, and adequately describe the leased premises;
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The term of the lease arrangement must be at least one year;
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The leased premises must not exceed that which is reasonable and necessary for the legitimate business purposes of the lease;
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Leased space must be used exclusively by the lessee;
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Rent under the lease arrangement must be set in advance and consistent with fair market value (FMV);
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The rental charges under the lease arrangement cannot be determined in a manner that considers the volume or value of any referrals or other business generated between the parties, uses a formula based on a percentage of the revenue attributable to the services performed or business generated in the office space or is based on per-unit of service rental charges; and
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The lease arrangement would be commercially reasonable even if no referrals were made between the lessee and the lessor.[7]
One of the key elements of the Lease Exception is the requirement for the lease arrangement to be consistent with FMV, which is defined, in pertinent part, under the Stark Law as follows:
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Fair market value means, “with respect to the rental of office space, the value in an arm’s-length transaction of rental property for general commercial purposes (not taking into account its intended use), without adjustment to reflect the additional value the prospective lessee or lessor would attribute to the proximity or convenience to the lessor where the lessor is a potential source of patient referrals to the lessee, and consistent with the general market value of the subject transaction.”[8]
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General market value means, “with respect to the rental of equipment or the rental of office space, the price that rental property would bring at the time the parties enter into the rental arrangement as the result of bona fide bargaining between a well-informed lessor and lessee that are not otherwise in a position to generate business for each other.”[9]
Additionally, under the Lease Exception, the lease arrangement must be commercially reasonable, which has recently been defined under the Stark Law to mean the following:
Commercially reasonable means that the particular arrangement furthers a legitimate business purpose of the parties to the arrangement and is sensible, considering the characteristics of the parties, including their size, type, scope, and specialty. An arrangement may be commercially reasonable even if it does not result in profit for one or more of the parties.[10]
A lease arrangement between a healthcare provider and a referral source that is not consistent with FMV and/or that is not commercially reasonable can violate the Stark Law, exposing healthcare providers to potential liability to the government.
Regarding lease arrangements, the Anti-Kickback Statute is similar to the Stark Law in that it prohibits space leasing arrangements between healthcare providers and referral sources unless the arrangement meets the space rental safe harbor, which contains similar elements to the Lease Exception.[11] Therefore, the compliance risks outlined in this article not only expose healthcare providers to potential liability under the Stark Law but to potential liability under the Anti-Kickback Statute.
On December 2, 2020, the Department of Health & Human Services Office of Inspector General (OIG) published the Revisions to Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary Inducements final rule, and the Centers for Medicare & Medicaid Services (CMS) issued the Modernizing and Clarifying the Physician Self-Referral Regulations final rule to reduce regulatory barriers to care coordination and accelerate the transformation of the healthcare system into one that pays for value and promotes the delivery of coordinated care.[12][13] The final rules went into effect on January 19, 2021, and brought several important changes and clarifications affecting real estate lease arrangements with referral sources, including, but not limited to, changes to the definition of FMV for leasing arrangements and the creation of the statutory definition of commercial reasonableness as outlined above, changes to the exclusive use requirements under the Lease Exception clarifying that the exclusive use requirement requires only the lessor to be excluded from the space, and the expansion of certain Stark Law exceptions (i.e., the fair market value exception, the certain arrangements with hospitals exception, and the payments by a physician exception) that could apply to space leases in some circumstances.[14][15][16][17][18][19]
Common Compliance Risks
Real estate lease arrangements between referral sources and healthcare providers present numerous compliance risks, any one of which can trigger a violation under the Stark Law or the Anti-Kickback Statute. Compliance risks associated with lease arrangements can be generally classified as “transactional” or “operational.” Transactional compliance risks stem from the lease arrangement itself and the specific structure of the transaction. Operational compliance risks stem from the subsequent administration, or lack thereof, of the terms of the lease arrangement with a referring physician. Both compliance risks are caused by structural deficiencies in healthcare providers’ compliance programs, and both can expose healthcare providers to significant liability.
Transactional Compliance Risks
Healthcare providers face a myriad of transactional compliance risks when they enter into lease arrangements with referral sources. Some, such as the lease being signed by all the parties, are easy to identify. Others, particularly compliance risks associated with FMV and commercial reasonableness requirements, are more subtle and have a greater potential to result in violations. Healthcare providers must be especially cognizant of the compliance risks associated with rent rates, commercial reasonableness analyses, square footage measurements of leased premises, and tenant improvement allowances.
Rent Rates
Healthcare providers are legally obligated to charge or pay rent to referral sources that is consistent with FMV. The failure of healthcare providers to procure FMV support from qualified and independent third-party valuation experts or to procure FMV reports that align with the transactions they are supposed to support are common transactional compliance risks relating to rent rates.
Application of the FMV Report
Even if healthcare providers procure and rely on FMV reports from qualified valuation experts, an FMV report that is inaccurate or, as is more often the case, misapplied to the transaction can leave healthcare providers responsible for Stark Law violations. Consequently, healthcare providers should have internal protocols to ensure that they procure high-quality FMV reports that support their real estate lease transactions and apply those reports accurately to those transactions.
Commercial Reasonableness
In addition to charging rent rates consistent with FMV, lease arrangements with referral sources must be commercially reasonable. Many healthcare providers fail to undertake or document commercial reasonableness analyses of real estate lease arrangements with referral sources. Consequently, if a real estate lease arrangement is challenged on commercial reasonableness grounds, the healthcare providers lack documentary evidence to defend the arrangement. Additionally, many healthcare providers are under the mistaken belief that so long as a transaction is consistent with FMV, it is automatically commercially reasonable. That, however, is not always the case. If a healthcare provider enters into a lease arrangement with a referral source that is consistent with FMV, but for space that the healthcare provider does not need, the arrangement may not be commercially reasonable, which is one of the requirements under the Lease Exception.
Square Footage Measurements
While it is critically important for healthcare providers to charge referral sources rent rates per square foot that are consistent with FMV, it is equally important to ensure that the square footage of the leased premises is accurately measured. Remuneration to referral sources can be accomplished by charging rent rates below FMV or by not charging the referral source for the entirety of the space the referral source is occupying. For example, if a referral source leases 10,000 square feet from a healthcare provider but only pays for 9,500 square feet because the space was inaccurately measured or inaccurately accounted for in the lease arrangement, the referral source receives remuneration from the healthcare provider by not having to pay for 500 square feet of space that it occupies.
Tenant Improvement Allowances
Providers should carefully consider the amount of tenant improvement allowances granted to referral source tenants. Failing to account for tenant improvement allowances in FMV reports can result in incorrect FMV rent range determinations. Additionally, overly generous and unnecessary allowances for tenant improvements to referral sources can also lead to transactions not being commercially reasonable (e.g., typically, it would not be commercially reasonable to provide a $100,000 tenant improvement allowance for a lease arrangement that generates $125,000 in total rent revenue). Finally, a healthcare provider’s use of internal benchmarks and caps for tenant improvement allowances can create additional compliance risks, especially if those benchmarks are exceeded or if tenant improvement allowances are given for leased spaces that are already in turnkey condition, as this could be perceived as remuneration for inducing or rewarding patient referrals.
Off-Lease Benefits
Healthcare providers should also be aware of providing benefits to referral sources at no cost that are not referenced in a lease arrangement and not accounted for in the rent rate. Examples of off-lease benefits include free hazardous/medical waste removal services, free parking, free meals, free telephone, free cable and internet, and free transportation services. Any benefit that a healthcare provider grants at no cost to the referral source could be interpreted as remuneration to the referral source to induce or reward patient referrals, subjecting the healthcare provider to significant penalties.
Operational Compliance Risks
Structuring lease arrangements properly and in compliance with the Stark Law is only half the battle. The proper administration of the lease arrangements is just as important. A lease arrangement structured in perfect compliance with healthcare regulations can still expose healthcare providers to compliance violations if the arrangement is not properly administered. Common operational compliance risks involve rent collection, operating expense reconciliations, off-lease benefits, space creep, and timeshare arrangements in general.
Rent Collection
To avoid liability under the applicable healthcare regulations, healthcare providers must collect all rent due under their lease arrangements with referring physicians. Despite this requirement, many healthcare providers regularly fail to do so. This failure can manifest in many different forms.
Tenant physicians may fail to pay rent for their spaces for various reasons, yet healthcare providers inadvertently allow them to continue occupying their spaces for extended periods. When this happens, many healthcare providers fail to send notice of default letters and seek available remedies under the law. If and when the delinquent tenants finally decide to pay their outstanding rent, healthcare providers often fail to impose and collect late fees or interest charges on the delinquent amounts despite lease arrangements requiring them to do so. These failures can happen because of administrative oversights or healthcare providers’ reluctance to engage in actions that could upset the physicians or result in the healthcare providers garnering a negative reputation with physicians.
Similar issues arise with rent escalators and holdover premiums. Most lease arrangements contain annual lease escalators through which a tenant’s base rent increases by a certain percentage (typically between 2% and 4%) each year throughout the term of the lease. However, healthcare providers do not always apply these rent escalations, resulting in tenant physicians paying less in total rent during the term of the lease than required under the lease. Many lease arrangements also require physicians who go into holdover to pay a higher rent, typically set as a percentage of the base rent rate for the year immediately preceding the holdover period (typically between 125% and 200%), during the holdover period. Just like with late fees and rent escalators, these holdover premiums are often not imposed and collected. As a result, physicians pay less rent than required under the lease arrangement.
Tenant Improvement Allowances
Typically, tenant improvement allowances are capped by the landlord, and most lease arrangements require tenants to pay for costs of improvements in excess of the tenant improvement allowance as additional rent. Problems arise when healthcare providers fail to charge these tenant improvement allowance overages as additional rent, resulting in healthcare providers not collecting the full amounts due under the lease arrangements.
Operating Expenses
Healthcare providers face additional compliance risks when they enter into triple net leases and modified gross leases. These types of leases require tenants to pay for a specified share of the enumerated operating expenses based on the amount of space they occupy in the building. Many healthcare providers fail to reconcile operating expenses, resulting in referring physicians not paying the operating expenses for which they are responsible.
Including or excluding certain property expenses in or from operating expenses can also raise compliance concerns. For example, healthcare providers may fail to include estimated insurance premiums in operating expenses when they are self-insured, meaning the tenant physicians will not have to pay for their share of insurance on the property. Another potential issue arises when healthcare providers make repairs inside a physician’s leased premises despite the tenant being obligated under the lease to pay for the costs of such repairs. If the healthcare provider inadvertently includes the costs of those repairs in the total operating expenses for the property that are then shared by all the tenants in the building, that certain tenant will not be paying for all expenses according to the terms of the lease arrangement.
Space Creep
Space creep is an issue that arises when healthcare providers allow or fail to recognize that physicians are using or have moved into vacant spaces adjacent to the space covered under their lease arrangement without executing a lease amendment or paying additional rent. Often, space creep involves a physician using storage or administrative spaces. These additional spaces are not covered by the physician’s existing lease arrangement with the healthcare provider. As a result, the physician ends up occupying space without a written lease in place, which violates the applicable healthcare regulations. The physician receives remuneration from the healthcare provider by not paying for the additional space.
The best way to prevent space creep is for healthcare providers to conduct regular walkthroughs of their real estate portfolio to ensure that physicians do not occupy more space than provided for under their leases. Additionally, a physician should never be allowed to use any space in a building, regardless of how small or immaterial it may be, without first executing an amendment to their existing lease agreement (or a new lease agreement for such space) that incorporates the additional space into the lease and defines the additional rent the physician must pay.
Lease Expirations
Many healthcare providers fail to track lease expiration dates, and, as a result, referral source tenants may occupy spaces without active lease arrangements in place. This presents several issues. First, even if the lease rates were consistent with FMV and supported by a defensible FMV report when the lease was first entered into, once the lease expires, the rates charged under the expired lease may no longer be consistent with FMV. Second, the healthcare provider may fail to continue collecting rent from tenants occupying the space after lease expiration. Because expired leases are difficult to monitor and may not be reflected on the lists reviewed by healthcare providers’ compliance and audit departments, healthcare providers inadvertently allow tenants to occupy spaces for years without a lease in place and without paying rent. Third, where lease arrangements expire through the fault of the healthcare providers or their third-party lease administrators, healthcare providers may be reluctant to impose holdover premiums on the tenants whose leases have expired even though the terms of the lease require them to do so.
Poorly designed leasing policies and procedures are often the root cause when a healthcare provider allows a lease arrangement to expire. Bottlenecks in the leasing process prolong lease renewal discussions and negotiations and can result in the expiration of the lease arrangement before renewal is executed. Additionally, many healthcare providers fail to implement centralized tracking systems that monitor the material terms of leases, such as lease expiration dates, rent escalation dates, payment history, etc., and thus fail to realize that a lease arrangement has expired or is about to expire. Finally, many healthcare providers fail to conduct regular walk-throughs of their real estate portfolios to ensure that the occupied spaces are covered by active lease arrangements and used in the manner prescribed in such lease arrangements.
Timeshare Lease Arrangements
Timeshare lease arrangements, where a physician leases a defined space part-time (e.g., two days a week from 8:00 a.m. to 12:00 p.m.), present significant compliance risks for healthcare providers. Tracking the time spent by a physician in the space covered under a timeshare lease arrangement presents administrative challenges that could result in operational compliance issues. A physician may, for example, advertently or inadvertently use the space for more time than allotted under the timeshare lease arrangement. In such an instance, the healthcare provider could be seen as providing remuneration to the physician through reduced rent.
Space creep issues can be especially prevalent in timeshare lease arrangements. Because physicians do not occupy the spaces full-time, they will often bring patient records and other supplies and materials and ask to store them in closets or spaces not covered by and paid for under their timeshare lease arrangements. Once again, the healthcare providers could be seen as providing remuneration to the physician in the form of free rent on the additional storage space. Similarly, the spaces leased by physicians under timeshare lease arrangements typically include several exam rooms inside a larger suite. The physician should only use the exam rooms covered by the lease arrangement. However, there are situations when the physician uses additional exam rooms inside the suite that are not covered by and paid for under the timeshare lease arrangements.
Addressing Compliance Risks
Retain Qualified and Independent Third-Party Valuation Consultants to Determine FMV of Rent Rates
To help ensure the rent rates charged to referring physicians meet the definition of FMV, healthcare providers should retain qualified and independent third-party valuation consultants to provide supporting FMV reports. The applicable regulations impose no obligations on healthcare providers to hire valuation experts with certain designations or use specific valuation methods to determine rent ranges consistent with FMV. The government will accept any method that is commercially reasonable and provides evidence that the rent rates meet the definition of FMV under the Stark Law.[20] Therefore, when selecting a valuation consultant, the key questions for a healthcare provider should be (1) whether the valuation consultant is qualified to render an opinion and (2) whether the valuation consultant’s opinion is supported by defensible analysis.
When selecting a consultant, healthcare providers should closely examine the consultant’s experience in the healthcare real estate industry. Prudent healthcare providers will select consultants with multiple years of healthcare real estate experience and hands-on experience performing and providing FMV opinions for healthcare real estate transactions.
In addition to selecting a consultant with significant experience in the healthcare real estate industry, healthcare providers should carefully examine the consultant’s analysis to arrive at FMV opinions. The opinion should be based on well-defined and widely accepted standards of practice (e.g., proper use and application of the market, income, and/or cost methods to real estate valuation), supported by reliable sources, and based on the Stark Law’s definition of FMV. The opinion should also cover all the material terms of a particular lease arrangement. The strength and the defensibility of the resulting FMV opinion will depend on the consultant’s relevant experience and ability to properly customize well-established real estate valuation methodologies to specific healthcare real estate transactions.
Ensure Rent Rate Accuracy of the FMV Report
The rent range in an FMV report should account for factors like the lease structure (i.e., whether the operating expenses are accounted for on a full-service gross, modified gross, or triple net basis), quality of the space, rent escalators, rent abatements, and tenant improvement allowances. Different types of lease structures will command different rent rates. As a result, it is imperative that healthcare providers accurately classify their lease arrangements with referral sources. Leases can be generally subdivided into net leases and gross leases. Under a net lease, the tenant pays base rent for the use of the premises and additional rent, which may, depending on the type of net lease (single, double, or triple net), include operating expenses and common area maintenance fees (CAM), taxes, and property insurance.
Conversely, under a full-service gross lease, the tenant pays a single, “all-in” rent, and the landlord is responsible for paying property CAM, taxes, and property insurance. Modified gross leases can vary and are a hybrid between a net lease and a full-service gross lease. Regardless of which lease structure it chooses to employ, the healthcare provider must ensure that the classification given to the lease arrangement matches its substance so that an appropriate rent rate can be assigned to it. Charging referral sources triple net rent rates for full-service gross leases, for example, will likely result in healthcare providers charging below FMV rates, potentially subjecting them to liability.
Annual rent escalators and rent abatements also impact the FMV of rent rates. In most markets, rent rates increase on an annual basis. A long-term lease arrangement that does not contain annual rent escalators can result in a lease arrangement where the rent rate is consistent with FMV during the first year of the term but falls below FMV in subsequent years because it does not escalate like other rent rates in the market. As a result, the absence of annual rent escalators in lease arrangements can result in compliance violations.
Like annual escalators, rent abatements are market specific. If the market does not typically provide rent abatements, they should not be included in lease arrangements with referral sources. If rent abatements are included in a lease arrangement, accounting for them when determining the FMV of rent rates is critical. Rent abatements result in lower overall revenue for the landlord during the lease term. As a result, a rent rate that may appear to be consistent with FMV on its face may effectively be lower than FMV when accounting for the overall revenues that the landlord will generate during the term of the lease arrangement.
Obtain an Accurate Commercial Reasonableness Opinion
There is some debate in the healthcare industry about what party is best suited to render commercial reasonableness opinions for lease transactions: the valuation consultant, the real estate department, or the legal department. Although the answer to this question depends on different factors, the most defensible position is to have all three parties provide input into the commercial reasonableness of a transaction. A properly qualified valuation consultant experienced in the healthcare real estate industry may opine on the commercial reasonableness of the lease terms and what is customary in a particular market; the real estate department may opine on the commercial reasonableness of the transaction as it relates to tenant selection, the services provided by the tenant, and the overall real estate strategy of the healthcare provider; and the legal department may opine on the commercial reasonableness of the legal rights and obligations of the parties under the lease arrangement. Regardless of what party ultimately opines as to the commercial reasonableness of the transaction, the commercial reasonableness analysis should be well documented and able to withstand challenge.
Accurately Measure Square Footage of Real Estate
Healthcare providers should consider hiring qualified engineering or architecture firms to accurately measure the spaces in their real estate portfolio using a unified standard of measurement approved by reputable organizations like the Building Owners and Managers Association. All measurements should be regularly updated to account for any changes in the spaces caused by tenant improvements, consolidation or separation of spaces, and renovations of medical office buildings.
Similarly, healthcare providers should be consistent internally and within local markets in structuring leases based on “usable square footage” (a measurement that does not include a square footage allocation of common areas of the building to the leased premises) or “rentable square footage” (a measurement that does include a square footage allocation of common areas of the building to the leased premises) and charging appropriate rent rates based on the structure of the lease. For example, rent rates per square foot for leases based on usable square footage will be higher than rent rates based on rentable square footage because the referral source is being charged for less total square footage than it is ultimately using since common areas that the referral source is using are not factored into the total usable square footage.
Address Tenant Improvement Allowances in FMV Reports
As a matter of best practice, tenant improvement allowances should be addressed in FMV reports, and the lease agreements should provide for tenant improvement allowances consistent with the supporting FMV reports. Internal benchmarks for tenant improvement allowances should not be exceeded absent a legitimate and documented business purpose.
Contract with and Task Third-Party Property Managers with Reviewing and Confirming Operating Expense Reconciliations
To mitigate the risks associated with operating expenses, healthcare providers can contract with and task third-party property managers with reviewing and confirming operating expense reconciliations. Similarly, healthcare providers should implement internal protocols through which the property accountants reconcile the operating expenses and work with the healthcare providers’ legal counsel to ensure that all costs are accurately passed through to tenants pursuant to the terms of the applicable lease arrangements.
Ensure Timely Rent Collection Practices are Being Followed through Communication, Training, and Third-Party Property Managers
The operational compliance risks associated with rent collection can often be attributed to a lack of communication between different healthcare provider departments. For example, a healthcare provider’s billing department may fail to communicate to their legal and real estate departments that a physician is behind in paying rent. Because the legal and real estate departments are unaware that rent is outstanding, they will not send notices of default, assess and collect late fees and interest charges, and, if necessary, commence eviction proceedings because they are unaware of any problem with the lease arrangement. Therefore, it is critically important to avoid silos between different healthcare provider departments and ensure they regularly communicate. Regularly scheduled interdepartmental meetings can help prevent departmental silos.
Additionally, lack of adequate training often results in rent collection problems. Employees tasked with collecting rent may not fully appreciate the compliance considerations for ensuring that all amounts due under a lease arrangement are collected from the physician tenant. Therefore, healthcare providers should regularly conduct educational seminars for their employees on the applicable healthcare regulations.
Another way to mitigate rent collection issues is to hire third-party property managers to collect rent and interact with physician tenants. Experienced property managers will have systems to ensure that all rent due under the leases is collected timely and accurately and that, when necessary, late fees and interest charges are collected and assessed. These independent, third-party property managers can send notice of default letters and interact with nonpaying physician tenants during the rent collection process, thereby eliminating the need for healthcare providers to engage in difficult discussions with nonpaying physicians. Finally, for claims brought under the Anti-Kickback Statute, third-party property managers can help healthcare providers negate the Anti-Kickback Statute’s requisite element of intent.
Have Policies and Procedures in Place to Monitor Lease Expirations and Renewals
To mitigate the risks associated with lease expirations, healthcare providers should streamline their leasing policies and procedures to eliminate any existing bottlenecks in the lease renewal process. Additionally, healthcare providers should use property management software that allows them to track important lease information and dates and that can automate many of the functions necessary for proper lease administration. Regular walkthroughs of real estate portfolios should be performed, and a walkthrough checklist should be created to guide the personnel performing the walkthrough. The completed walkthrough checklists should be saved to each individual lease file. Finally, outsourcing property management and lease administration functions to reputable healthcare property management firms may mitigate risks because those firms have the knowledge, experience, resources, and personnel necessary to perform the work effectively and efficiently.
Adopt and Enforce Occupancy Schedules
To mitigate the operational compliance dangers posed by timeshare lease arrangements, healthcare providers should adopt occupancy schedules and have property managers strictly enforce those schedules. These measures help ensure that a physician comes and leaves within the time blocks allotted under the applicable timeshare lease arrangement and that multiple physicians do not use the same space simultaneously. Healthcare providers should also limit physicians’ rights to reschedule or cancel the time blocks within which the physician can use and occupy the space to a set number of times per year and require physicians to submit notices several weeks in advance to reschedule a time block. Finally, healthcare providers should not allow the physician to use any space (e.g., storage closets, administrative spaces, or extra exam rooms) that is not covered by and paid for under the timeshare lease arrangement.
Possible Penalties
Healthcare providers face numerous penalties under the law if their real estate lease arrangements with referral sources are noncompliant, as more specifically outlined below:
Stark Law
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Civil sanctions:
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Denial of payment
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Refunds of amounts collected
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$15,000 fine for each bill/claim
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Treble damages on amount claimed
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$100,000 fine for each arrangement or “scheme”
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Program exclusion
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False Claims Act liability[21]
Anti-Kickback Statute
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Civil sanctions:
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Potential fines of up to $50,000 per violation
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Minimum $50,000 settlement under OIG Self-Disclosure Protocol
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Civil assessment of up to three times the kickback
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Program exclusion
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False Claims Act liability
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Criminal sanctions:
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Liability for both those offering and those receiving remuneration
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Fines of up to $25,000 for each violation and prison terms of up to five years[22]
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False Claims Act
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Repayment plus interest
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Treble damages
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Civil monetary penalties
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Exclusion from Medicare/Medicaid[23]
It is also worth noting that a study of Voluntary Self-Referral Disclosure Protocol settlement data published by CMS and Provider Self-Disclosure Protocol settlement data published by the OIG revealed that, in the period between 2009 and 2016, the cost of settlement of a potential violation involving a real estate arrangement was 66% higher than the average settlement that did not involve a real estate arrangement.[24] The study also found that, during that period, “the average settlement involving a real estate arrangement was $731,654.17 compared to the average settlement amount of $439,097.43 for matters not involving a real estate arrangement.”[25]
Compliance Resources
Centers for Medicare & Medicaid Services
Physician Self-Referral
CMS provides comprehensive information on its website, including, but not limited to, advisory opinions, to help healthcare providers remain compliant with the Stark Law.
https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/index
U.S. Department of Health & Human Services, Office of Inspector General
Advisory Opinions
OIG Advisory Opinions provide feedback and advice on certain applications of the Anti-Kickback Statute to, among other situations, specific healthcare real estate situations.
Health Care Fraud Prevention and Enforcement Action Team Provider Compliance Training
The OIG’s compliance training consists of videos, podcasts, and PowerPoint presentations concerning the Stark Law and Anti-Kickback Statute and their corresponding exceptions and safe harbors, tips on creating effective healthcare compliance programs, and additional resources for healthcare providers regarding real estate compliance.
https://oig.hhs.gov/compliance/provider-compliance-training/index.asp#materials
Office of Inspector General and Health Care Compliance Association
Measuring Compliance Program Effectiveness: A Resource Guide
This presentation, put together by the OIG and Health Care Compliance Association, provides an extensive overview of elements that may be necessary to craft an effective healthcare real estate compliance program.
https://oig.hhs.gov/compliance/compliance-resource-portal/files/HCCA-OIG-Resource-Guide.pdf
Realty Trust Group
Innovation Center: White Papers
Realty Trust Group regularly posts white papers on various healthcare real estate compliance topics.
https://www.realtytrustgroup.com/innovation-center/#white-paper
Risk Takeaways
Main points of interest:
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Both transactional and operational risks in healthcare real estate compliance
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Rent rates must be consistent with FMV
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FMV reports need to be accurate to support real estate lease transactions
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Lease arrangements need to be commercially reasonable
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Accurate square footage measurements are critically important
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Carefully consider the tenant improvement allowances and account for them on FMV reports
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Be aware of off-lease benefits and their risks
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Ensure rent and holdover premiums are collected and adhere to annual lease escalations
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Avoid space creep and monitor lease expirations
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Timeshare lease arrangements are difficult to monitor and may lead to compliance issues
Areas to watch:
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Updates to the Stark Law
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Updates to co-location of hospital space rules
Laws that apply:
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Stark Law, 42 U.S.C. § 1395nn
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Anti-Kickback Statute, 42 U.S.C. § 1320a–7b
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False Claims Act, 31 U.S.C. §§ 3729–3733
Addressing compliance risks:
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Development of real estate compliance policies and procedures
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Procurement of FMV reports from qualified valuation consultants
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Documenting commercial reasonableness analysis
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Space walkthroughs
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Annual lease audits