Which of the following is NOT a safe harbor criterion under the Anti-Kickback Statute?

• A. Be in a position to refer patients directly to the ASC and perform surgery on such referred patients.
• B. Derive 1/3 of medical practice income from procedures performed at the investment ASC.
• C. Derive 1/2 of medical practice income from procedures performed at the ASC.
• D. Perform at least 1/3 of the procedures that may be performed in an ASC setting at the investment entity ASC.

Answer: (C)

The safe harbors for physician investment in an ASC are designed to prevent kickbacks by limiting how much a physician’s income depends on the ASC and by ensuring enough ongoing clinical involvement. A key safe harbor requirement is that a physician may not derive more than about one-third of their total professional income from procedures performed at the investment ASC, and they should perform at least one-third of the ASC’s procedures themselves. These limits help ensure the arrangement isn’t driven by referral incentives. Deriving half of a physician’s income from ASC procedures goes beyond that safe harbor threshold and thus is not a safe harbor criterion. The other options align with the idea that income from the ASC should be limited and the physician should maintain substantial involvement in ASC procedures, which is why they’re considered safe harbor-feasible elements.