The other day, a new Compliance Officer asked the question, “How would you go about conducting a physician leasing audit, and if you realize there are issues, where should you start fixing them?” That was a huge question! How and where to begin are the questions every new hospital Compliance Officer faces.
The answer is, “one bit at a time.”
First, we must review the hospital’s policy and procedure on Space Lease and also on Equipment Leases. This is typically in the legal department (ideally, all policies and procedures will be maintained in one accessible location). Make sure the policy and the procedures are written to comply with most recent Stark Law Space and Equipment lease exception:
(Note: if you are auditing your leases, this will make a handy checklist) 42 C.F.R §411.357(a)(5); Final rule, 73 FR 48434,48711, Aug. 19, 2008
Must be in writing
Signed by the parties (when auditing compare date of signatures with the check or payment log)
Specifies the premises subject to the lease
Term of at least one year
Space does not exceed what is reasonable and necessary for the legitimate business purposes of the lease
Space used exclusively by the lessee when being used by lessee, except the lessee may also share common areas if the lessee’s payments for the common areas do not exceed the pro rata share of the expenses for the space.
The Space is not shared with or used by the lessor or any person or entity related to the lessor
The rental charges over the term of the agreement are set in advance.
The rental charges are consistent with fair market value.
The rent does not take into account the value or volume of any referrals or other business generated by the parties.
Rental charges are not determined using a formula based on a percentage of revenue raised, billed, collected, or otherwise related to the services provided in the office space. No per unit of service rental charges. (no per click arrangements)
The lease would be commercially reasonable even if no referrals were made between the lessee and lessor.
Holdover for up to six months is allowed as long as the terms and conditions do not change. After six month period expires. If a new lease is not executed before the 6 month holdover period expires, the repayments are calculated from the date the holdover period ends.
Allowing tenants to occupy space which is not included in the lease.
Not enforcing billing or collection of lease payments
Provided services not specified in the lease (i.e. waste removal, utilities)
Failure to timely renew and expired lease
Failure to impose increases specified in the lease.
If you find any of these issues in among your leases, meet with legal to conduct a proper Stark analysis and determine whether any repayments and self-disclosure are required. Then conduct a root cause analysis, looking at your current processes for executing and managing leases. It is also vital that you work with key stakeholders to develop a corrective action solution that is suitable for your facility.