On August 19, 2008, the Centers for Medicare and Medicaid Services (“CMS”) published final Stark rules in its 2009 Final Hospital Inpatient Prospective Payment Systems Rule(“Final Rule”). The Final Rule contains several significant modifications to the Stark regulations, some of which will require physicians, hospitals, or other healthcare providers to unwind or restructure their arrangements.   Several of the new Stark regulations are not effective until October 1, 2009, in order to give parties time to unwind or restructure arrangements which are impacted by the changes, but other provisions are effective October 1, 2008  In addition to these new Stark changes, healthcare providers must stay tuned for additional Stark and Medicare payment regulatory changes, which are expected to be published in November 2008 as part of the 2009 Medicare Final Physician Fee Schedule, and in future rulemakings.

In the Final Rule, CMS makes various revisions to the Stark regulations.  Some of these revisions emanate from proposals contained in the 2008 Medicare Proposed Physician Fee Schedule and some of the revisions emanate from proposals contained in the 2009 Inpatient Prospective Payment System Proposed Rule.  Because many of the proposals are interrelated, CMS opted to finalize them in one rulemaking, making it easier to analyze their integrated application to financial relationships between physicians and entities that provide designated health services (“DHS”).

Summary of the Final Rule

This section will summarize the major points contained in the Final Rule.  Further detail on the significant aspects of the Final Rule will be set forth later in this article.  A synopsis of the Stark changes as they appear in the Final Rule is as follows:

“Stand in the Shoes” Provisions:  Effective October 1, 2008, only physicians who have an ownership or investment interest in their physician organizations (e.g., group practice) will be required to stand in the shoes (“SITS”) of those organizations.  Employed physicians and physicians with a “titular ownership interest” may (but are not required to) stand in the shoes of their physician organizations.  The Final Rule also carves out an exception for physicians participating in financial arrangements that satisfy the Stark exception for academic medical centers and grandfathers a limited group of arrangements that previously met the Stark indirect compensation arrangement exception. “Set in Advance” and Amendments to Agreements:  CMS now states that it is reversing its prior Stark II Phase III position and permitting multi-year agreements to be amended after the first year without violating Stark’s “set in advance” requirement. Period of Disallowance:  Effective October 1, 2008, CMS establishes a rule that sets the outer limit of the time period during which referrals are prohibited as a result of a financial relationship that fails to satisfy a Stark exception.  Disallowance begins when the relationship fails to satisfy an exception and ends no later than the date that it satisfies an exception and the parties have returned all overpayments or paid all underpayments. Alternative Method for Compliance with Signature Requirements:  Effective October 1, 2008, if a financial relationship complied with an applicable Stark exception, except for meeting the signature requirement, Medicare payments to the entity will be permitted if the signature requirement is satisfied within thirty (30) days (for knowing failures) or ninety (90) days (for inadvertent failures) after the commencement of the relationship. Percentage-Based Leasing Arrangements:  Effective October 1, 2009, CMS eliminates percentage-based compensation in space and equipment leases, paralleling its new treatment of “per-click” payments in space and equipment leases.  Under the Final Rule, compensation for the rental of office space or equipment that is determined using a formula based on a percentage of the revenue raised, earned, billed, collected, or otherwise attributable to the services performed, or business generated in the office space, or the services performed or business generated through the use of equipment is prohibited. “Per-Click” Leasing Arrangements:  Effective October 1, 2009, CMS eliminates the use of “per-click” fee payments in space and/or equipment leases when the payments reflect services provided to patients referred between the parties.  This “per-click” fee prohibition applies to both direct leasing arrangements and indirect leasing arrangements (e.g., leases between physician-owned leasing companies and hospitals). Services Provided “Under Arrangements”:  Effective October 1, 2009, both the hospital that bills for services provided “under arrangements” and the entity that performs the services to the hospital will be considered to be furnishing “designated health services” (“DHS”) under Stark.  This change will effectively eliminate a referring physician’s ability to own interests in such service providers. CMS does not define what it means to “perform” the services, but does signify that an organization is not performing a DHS if it only leases or sells space or equipment, furnishes supplies that are not separately billable, or provides management, billing services, or personnel to the entity performing the services. Exception for Obstetrical Malpractice Insurance Subsidies:  Effective October 1, 2008, CMS adds an alternative exception for subsidies of malpractice insurance premiums provided by hospitals, federally qualified health centers, and rural health clinics. Ownership or Investment Interest in Retirement Plans:  Effective October 1, 2008, CMS narrows the so-called “retirement plan exception” to ensure that referring physicians cannot use it to evade Stark’s self-referral prohibition by investing in a DHS entity via their employer’s retirement plan.  Under the Final Rule, only a physician’s ownership or investment interest in their employer-sponsored retirement plan is protected. Burden of Proof:  Under the Final Rule, CMS revises the regulations to place the burden of proof in appeals of Stark-based payment denials on the entity appealing the denial.  This burden is consistent with the burden of proof on Medicare providers and suppliers appealing payment denials based upon other reasons, such as a failure to meet a condition of coverage. Moreover, CMS clarifies that the burden of production at each level of appeal is initially on the DHS entity, but may shift to CMS (or its contractors) depending upon the evidence presented by the DHS entity. Disclosure of Financial Relationships Report (“DFRR”):  The Final Rule announces that CMS is proceeding with its proposal to send the DFRR to 500 hospitals.  The DFRR is designed to collect information regarding the ownership and investment interests and compensation arrangements between hospitals and physicians.  Hospitals will have sixty (60) days to complete the DFRR and may be subject to civil monetary penalties of up to ,000 per day that the submission is late, although CMS will first issue a letter to the hospital and the hospital may obtain an extension for good cause.

“Stand in the Shoes” (“SITS”)- CMS Simplifies the SITS Doctrine          

Under the Stark Phase III SITS doctrine, referring physicians are treated as standing in the shoes of their physician organization for purposes of applying the rules that describe direct and indirect compensation arrangements between the referring physician and a DHS entity. Under Stark Phase III, a physician organization was defined as a physician, physician practice, or a group practice.  When performing a Stark analysis, the SITS provisions are applied for purposes of evaluating the relationship between a DHS entity and a referring physician when a physician organization is an intervening link in the chain of relationships and linked to the physician with no other intervening links between them.  Under the SITS doctrine, a referring physician is considered to have the same compensation arrangements as the physician organization in whose shoes the physician stands.  If a physician stands in the shoes of his or her physician organization, the physician (and DHS entity) will have to satisfy a more stringent direct Stark exception with regard to financial relationships between the physician organization and the DHS entity, to which the physician refers.

Industry stakeholders, such as academic medical centers (“AMCs”) and integrated tax-exempt health care delivery systems (“IDSs”), responded to the Phase III SITS provisions with concerns as to how the SITS provisions would apply in such settings, and how “mission support payments” and similar payments (“support payments”) would satisfy the requirement contained in many direct Stark exceptions that compensation be fair market value for items or services provided.  These stakeholders argued that prior to Stark Phase III SITS, these support payments were analyzed under the indirect compensation arrangement rules, and were permitted.   In order to address these concerns, CMS delayed the applicability of SITS for one year only to certain compensation arrangements involving AMCs and IDSs.  Shortly after publication of the one-year delay, other stakeholders urged that the applicability of the SITS provisions to support payments should not be dependent upon whether the system is an AMC or has a particular status under the Internal Revenue Service.

In response, CMS proposed in the 2009 IPPS proposed rule, two alternative ways to address SITS.  The first proposal included two options for revising the Phase III SITS provisions, and the second proposal left the Phase III SITS provisions untouched, but proposed creating a new regulatory

Where to start your search:

There are innumerable resources on the web that can be used to assist you with the search and selection process when you are struggling to choose the right CMS for your task. To start out, check out this CMS List.

The above list provides you with an enormous list of content management systems with descriptions of each. Once you’ve found a few that you like, contact the applicable vendor and see if they can provide you with a demo of the system (ensure you include the install process as part of the demo) so that you can get a good overview of the product.

You also want to make sure that the CMS you are considering is an seo friendly cms.

You can also look for CMS Reviews that give you detailed breakdowns of the product.

Consider the cost:

Don’t forget to consider open source solutions. There are tons of them available and most have very large communities.

The DO NOT List:

Do NOT pick your CMS based on the fact that you found a pretty theme for it. Themes can be created quickly and easily.. and quite frankly, choosing based on this factor alone is bound to give you a headache.
Do NOT just buy something without trying it first. You wouldn’t do it with a car (we hope) so don’t do it with your content management system either. We can pretty much guarantee that if you approach a vendor and tell them you are curious and interested but want to demo first, they will make it happen or risk losing your business.
Do NOT throw tons of money (cause we all have tons of money right?) at a developer and have them make something custom just for you. It’s not worth the investment.. there are plenty of well supported systems out there and it’s much better to have others who know the product as support options rather than just one person.
Do NOT assume that because the CMS costs money, it must be better than it’s Open Source alternatives. While this MAY be the case in SOME instances.. it is most certainly not always the case. There are a large number of Open Source CMS products on the market that are much better than some of the commercial offerings.. and vice versa.
Do NOT go to the Drupal forums and ask them if WordPress or Drupal is the best.. you will get a biased answer. This is about as intelligent as walking into a Ford dealership and asking them if they think Ford is better than Chevrolet.

The DO List:

DO take your time and explore your options. There are TONS of resources out there (this is the internet for pete’s sake!) that can help you in your search. We think cmscritic.com is the best. (like how we slid that in there?).
DO try the product first. We don’t recommend demos as they are already installed. It’s best to download the package, find a cheap host somewhere and try to install it and see what happens. If you get lost somewhere and need help.. hit the forums for the applicable package.
DO ask other webmasters of sites that you like. Some may or may not be willing to tell you what (if any) CMS they are using but it never hurts to ask.  Frequest webmaster forums or un-jaded sites such as ours!
DO remember to fully research the product you are considering.. explore some themes, plugins and see how the community treats questions from new users. This will give you a good feel for the product.