When legal counsel is looking at relationships between health care entities subject to anti-kickback or Stark law rules, fair market value will come into play. Multiple issues surround fair market value and performing the appropriate analytical steps. In addition to fair market value, most applications of the anti-kickback statute and Stark law also require commercial reasonableness.

One of the relatively critical issues that is often overlooked or misapplied is determining an appropriate rate of return. As described below, once the rate of return is properly determined, it can be applied to several issues including the actual funds at risk, the length of time the funds might be invested and continue to be at risk, changes and risk overtime, and other factors.