Disclaimer as to Uncertain Nature of Law

Here is the "disclaimer as to uncertain nature of law" for legal memos involving anti-kickback, fee-splitting and self-referral.

The disclaimer incorporates language from a regulatory agency, because this language mirrors the uncertainty inherent in even the best legal advice concerning self-referral / Stark, fee splitting, patient brokering, and kickbacks.

Disclaimer as to Uncertain Nature of Law. The following opinion[1] by the Office of Attorney General from a sister state, Maryland, suggests the elusive nature of legal guidance in this area of law:


We must begin with an explicit acknowledgment of the limits of this opinion. In general, we will decline to state firm conclusions. Our reticence derives from several factors: the highly uncertain state of the law; the necessity to write an opinion based on a set of complicated facts as given, when additional facts might change the analysis; our inability to make judgments about financial matters, like the “fair market value” of certain services, that are inextricably linked to legal conclusions; and, finally, the reality that abstract conclusions in an opinion cannot substitute for the judgment of those who enforce these laws in particular cases, who are able to develop a fuller factual record, and who therefore may have a different perspective on the situation than we do.

Your request presents complex issues that are on the cutting edge of the business side of health care. These issues require the interpretation of statutes about which there is little guiding case law. Furthermore, regulations to implement these provisions are not fully in place, and are constantly being reviewed and revised…. As a result, the law dealing with joint ventures, kickbacks, and payments for referral has been said to be an “area in which darkness and chaos reign.” Hennigan, Structuring Ventures in a Post-Hanlester and Safe Harbors World, 14 Whittier L. Rev. 181, 182 (1993).

In addition, an investigation of whether these laws have been violated is a complex and painstaking matter. Each transaction must be analyzed in minute detail. Your request, by necessity, contains but a brief overview of the facts. Although we have attempted to supplement the facts through inquiries to the person whose situation prompted your request, opinion writing is not an investigatory process. Neither you nor we have a full picture of potentially relevant facts. Even if we did, when the facts must be evaluated against broad criteria like commercial reasonableness or fair market value, we lack the expertise to make these sorts of judgments. Yet, it is exactly these judgments that must sometimes be made before a firm legal conclusion can be reached.

For all of these reasons, our answers to the questions that you raise cannot be definitive.

[1] 1998 Md. AG LEXIS 132, 57-59 (Md. AG 1998).

If you have legal questions concerning self-referral, kickbacks and fee-splitting or patient brokering in New York, California, Massachusetts, Washington DC, and other states, contact a lawyer who knows the referral rules.

Consult an experienced health care law attorney who knows complementary medicine and integrative medicine for legal advice pertaining to any project involving allied health or CAM professionals.



Our law office has attorneys with legal experience  in FDA matters, including guiding  clients involved in health care  delivery, group medical and private  medical practice, who are concerned  about issues at the interface of  federal and state law, concerned  about medical board discipline or  medical malpractice liability  issues.  We also review and draft informed  consent forms and guide  clients concerning a variety of health care law  issues.

If you  have legal questions concerning telemedicine and telehealth practices, HIPAA legal issues, health care reform questions, or        other health law matters in New York, California, Massachusetts, Washington DC, and other states, contact a lawyer who     knows the rules.

Consult an experienced  health care law attorney who                  knows     complementary medicine and  integrative    medicine     for       legal     advice     pertaining to any project     involving     allied    health    or CAM     professionals.


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