The Final Rule includes a safe harbor for investment interests in physician practices or physician group practices as codified at 42 C.F.R. 1001.952(p). Under this safe harbor, remuneration prohibited by the Federal Anti-Kickback Statute does not include any payment that is a return on investment interest, such as a dividend or interest income, made to a solo or group practitioner investing in his or her own practice or group.
Many commentators disagree with the OIG that this type of safe harbor is necessary because the sharing of revenues and expenses among members of a group practice is an inherent part of participation in a group practice. However, the OIG has taken the position that such revenue sharing could create inappropriate financial incentives and therefore safe harbor protection is necessary. Furthermore, the OIG acknowledges that investment by a solo practitioner in his or her own practice does not implicate the Federal Anti-Kickback statute.
The final safe harbor offers protection only to group practices composed of two or more physicians based on the Stark definition of group practice. Furthermore, even if a group practice complies with all of the requirements for safe harbor protection, only returns on investment in the practice or group itself will be protected, as the safe harbor offers no protection to returns on investments in separately owned or operated healthcare entities.
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