The new ASC safe harbor: the triumph of public policy over legal consistency

D H Herring
Journal of Health Law 2000, 33 (3): 485-518
This Article traces the history of the OIG's use of safe harbors to allow certain activities that arguably violate a literal reading of the Anti-Kickback Statute. The author focuses particular attention upon the development of the ASC Safe Harbor from its genesis through its final issuance on November 19, 1999. The analysis finds legal inconsistency in the regulation in this area, which it attributes to the development of the ASC Safe Harbor being driven primarily by nonlegal, public policy concerns. The Article concludes by suggesting that OIG publicly embrace those policy goals and adopt broader investment-related safe harbors that focus on limiting returns to those attainable in a "fair market."

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