Can I join with a group of surgeons, internists and other specialists to create an ambulatory surgical center (ASC) for our community?

Nothing in Stark II prevents primary care physicians from participating with surgeons in ASCs, but this doesn't mean that they should not be concerned with Stark II at all.

Remember that Stark II prohibitions concern referrals. The law does not prohibit joint ownership arrangements. In order for Stark II to apply, three factors must be present: You must have a Medicare or Medicaid patient referral, it must be to an entity with which you (the referring physician) or an immediate family member has a financial relationship, and it must be for a designated health service. Even if all three elements are met, Stark II is not violated if a specific exception applies.

The concern for the primary care physician who is a co-owner of an ASC with surgeons is that this co-ownership will create a financial relationship between the physician and the ASC and may create one between the physician and the surgeon based on the broad definition of "financial relationship" under Stark II.

While joint venturing among various medical specialties in ASCs may create concerns about Stark II compliance that will need to be examined, Stark II does not flatly prohibit such arrangements.