The U.S. Department of Health and Human Services Office of Inspector General (OIG) quietly updated its public FAQs regarding Fraud and Abuse Authorities on April 23, 2026, in a way that healthcare providers cannot afford to overlook. These FAQ updates reinforce a message the OIG has been signaling to providers for years but one that is often overlooked: apparent compliance in form alone does not protect providers from federal Anti-Kickback Statute (AKS) liability. For physician groups or hospital systems bringing on new practices or providers, parties holding ownership interests in ambulatory surgery centers (ASCs), or providers referring services to affiliated providers, these OIG updates carry significant consequences.
FAQ #17: Proving Fair Market Value Alone Does Not Provide AKS Safe Harbor Protection
In the new FAQ #17, the OIG makes explicit what enforcement attorneys have long understood: paying or receiving fair market value (FMV) for goods or services does not, by itself, immunize an arrangement from AKS liability. While ensuring remuneration meets FMV is undeniably a best practice that may help rebut allegations of remuneration made in exchange for referrals, the fact that the remuneration was at FMV is not a complete defense.
The AKS is an intent-based statute. If regulators conclude that one purpose of a payment, even an FMV payment, is to induce or reward referrals of federal healthcare program business, the AKS is implicated. A full view of the circumstances surrounding the payment arrangement, including whether the arrangement is commercially reasonable, will factor into this assessment. An FMV-supported buy-in price for a new partner, an FMV office sublease to a referring specialist, or an FMV-set ASC distribution does not cure a payment made if the overall arrangement does not seem commercially reasonable. Instead, arrangements like this will be viewed as sham service arrangements, or ones intended instead to capture or reward a referral stream, leading to AKS liability regardless of an FMV payment.
Practical takeaway: Treat FMV remuneration as a bare minimum, but only as one factor within an overall AKS compliance analysis. When acquiring a practice group, admitting new physician owners, setting ASC distributions, or pricing a sublease to another provider, document not only the valuation, but also the legitimate business need for the arrangement, the commercial reasonableness of the structure, and the absence of any tie to referral volume or value. Where possible, fit the arrangement squarely within an applicable AKS safe harbor, such as those for investment interests, space rental, equipment rental, personal services, or employment.
FAQ #4 Update: Stark Law Compliance Does Not Mean AKS Compliance
Updated FAQ #4 directly addresses a persistent point of confusion: satisfying a Physician Self-Referral Law (Stark Law) exception does not shield a party from AKS liability. The two laws have different purposes, structures, and consequences. The Stark Law is a strict-liability civil statute focused on physician self-referrals for designated health services (DHS), with certain arrangements deemed Stark Law-compliant when specific “exception” criteria defined within the Stark Law are met. The AKS is a broader, intent-based statute reaching any remuneration tied to federal program referrals for any services, whether DHS or non-DHS.
This distinction between the Stark Law and the AKS matters most in the arrangements healthcare providers encounter every day. A space or equipment sublease to a referring physician, an in-office ancillary services arrangement, an ASC ownership structure that includes referring physicians, or a cross-referral relationship with an affiliated practice may satisfy all elements of a Stark Law exception on paper, but still expose the parties to AKS scrutiny if an underlying purpose of the arrangement is to reward or secure referrals. The OIG offers a pointed example: providing sporting event tickets, concert seats, and similar entertainment to referring physicians. Such gifts may fit within the Stark Law’s non-monetary compensation exception, but the OIG cautions that the same conduct may still violate the AKS, particularly where the gift is directed to high-volume referrers or accompanies referral discussions.
Practical takeaway: Analyze any potential arrangement under both the Stark Law and the AKS. Practice acquisitions, new-partner buy-ins, ASC investments, intra-group and inter-group referral patterns, sublease and shared-space arrangements, and entertainment or marketing spending directed at referral sources should each be scrutinized through the AKS lens even when the arrangement appears to meet a clear Stark Law exception.
What This Means for Providers
These OIG updates serve to remind providers that the OIG views the AKS as a substantive, fact-driven inquiry, and that the agency expects providers to think beyond technical compliance.
How Frier Levitt Can Help
If your practice is contemplating acquiring or merging with another group, admitting new physician owners, investing in or restructuring an ASC, formalizing referral relationships with affiliated physicians, or entering into a sublease or shared-space arrangement with another healthcare provider, now is the time for a fresh look. Contact Frier Levitt for a focused AKS and Stark Law compliance review before, not after, the deal is signed. Proactive counsel is substantially less expensive than a government investigation.
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