Author: Erica Jacobovits, JD


Graduate medical education (“GME”) is the general label used to describe postdoctoral physician training. Prevalent manifestations of such training, which typically takes place in a hospital or hospital-sponsored setting, include internship, residency, and fellowship programs. In order to receive students through the resident programs, as well as to be eligible for GME reimbursements through the Medicare program, “sponsoring institutions”[1] must comply with all applicable GME program requirements set forth by the Accreditation Council for Graduate Medical Education (“ACGME”).[2] Certain of these ACGME requirements relate to restrictions surrounding physician time commitments for core faculty members, and both program and associate program directors.

As a prime example of clinical services limitations, ACGME requirements for emergency medicine programs dictate that a program director “must not work more than 20 hours per week clinically[3]” (emphasis supplied).[4] Due to potential differences in the fair market value (“FMV”) of compensation for administrative services versus clinical services, failure to properly account for relevant ACGME requirements may result in Stark or anti-kickback violations.[5] Furthermore, where differences in compensation rates between clinical services and administrative services do not exist, ACGME limitations on clinical services may nevertheless yield lower total compensation, particularly where compensation is tied to productivity.

FMV Pitfall: When determining the FMV of compensation under GME services arrangements, valuators must be aware of the requirements of the governing agency. As noted above, knowledge of these requirements becomes particularly important where differences exist for the value of clinical services and administrative services, and which may potentially lead to Stark and/or anti-kickback concerns.

[1] As defined by ACGME as “[t]he organization (or entity) that assumes the ultimate financial and academic responsibility for a program of GME. [. . . ]” See
[2] Of note, GME programs currently governed by the American Osteopathic Association (“AOA”) are in the process of transitioning to a single accreditation system to be governed by the ACGME by July 2020 (see AOA’s “Basic Standards for Residency Training in Emergency Medicine” as most recently revised in June 2012, Sec. 6.2). As the current AOA requirements governing emergency medicine GME programs do not place time constraints on program directors’ clinical time, it is particularly prudent for employers and sponsoring institutions to acknowledge FMV implications before the transition date in order to better address their physicians’ salary expectations.
[3] We note that “clinical time” as described by the ACGME may include, but is not limited to, the clinical supervision of residents, i.e., time devoted to clinical services with or without the presence of residents.
[4] See “ACGME Program Requirements for Graduate Medical Education in Emergency Medicine” effective July 1, 2016, Sec. II(A)(4)(a)(1)(a).
[5] We note that CMS guidance in the preamble to the Stark II Phase III provides that “…the fair market value of administrative services may differ from the fair market value of clinical services.” 72 F.R. 51016 (September 5, 2007).