Our expert panel discusses best practices for commercial reasonableness.

Stark and antikickback laws require physician contracts to meet the standards of commercial reasonableness and fair market value. Until recently, regulatory agencies provided no formal definition for commercial reasonableness; however, in early 2021, CMS and the OIG issued extensive revisions to safe harbors to the federal antikickback statutes to clarify valuation requirements that appear in many of the Stark law exceptions. A new definition of commercial reasonableness was provided with the stated intent to reduce compliance burdens on providers and law enforcement, including limiting the need for external consultants to verify compliance. We advise initiating any contract review with an assessment of commercial reasonableness before considering fair market value.