In the proposed Medicare 2010 Medicare Physician Fee Schedule Update published in the July 13, 2009 Federal Register, CMS proposed a change in the Stark regulations that is intended to clarify the following points in the “stand in the shoes” rule:  

  • When a physician stands in this shoes of his or her physician organization and the applicable Stark exception requires a written agreement that is “signed by the parties,” it is not necessary for everyone in the physician organization to sign the agreement. In other words, it is sufficient if the agreement is signed by an authorized representative of the physician organization.  
  • For purposes of determining whether a compensation arrangement takes into account referrals or other business generated between the entity furnishing DHS and the physician who stands in the shoes of the physician organization, the appropriate analysis is whether the arrangement takes into account referrals or other business generated by the physician organization as a whole (i.e., all members, employees and independent contractors of the physician organization), not merely referrals or other business generated by the physician who stands in the shoes.

This rule change, which will appear in the second sentence of 42 C.F.R. §411.354(c)(3)(i), is expected to be published in final form later this year.