Commercial Investment Real Estate is the magazine of the CCIM Institute, the leading provider of commercial real estate education. CIRE covers market trends, current developments, and business strategies within the commercial real estate field.
Issue link: http://cire.epubxp.com/i/306204
24 May | June | 2014 Commercial Investment Real Estate R eal e st s ate transactions within the healthcare i nd us us s tr t y can in n vo v lve a wi w de variety of legal and regulatory issues. A n ap pa a re re ntly s im i ple offi ce lease between a physician gro up up p and a ho ho sp ital o r the sale of land and building between the two pa rt rt ies ca a n quickly run afoul of the Anti-Kickback S tatute and St St ar a k L aw w , or both . The AKS prov id id es for c riminal penalties, civil money p enalties, and pos si si bl b e ex cl cl us u ion from federal health- care programs such a s Me M di ca ca re and Medicaid. It is an "intent-based" analysis ev v al a uati ng g whether the parties were co o ns n ciously trying to induce or or rew ar ar d d referrals. As such, whil e th e AKS regulations cont ai ai n n safe h arbors delineating arrang em em ents that will be deemed n ot to vi vi ol o ate the statute, t he failure to to meet a safe harbor do es n ot m ea ea n that the transaction vi i ol ol ates the AKS. Again, the e le le me nt t o f "intent" must be presen t. t Stark, on the oth er er hand, is a "strict liabilit y" " o r me ch ch ani- cal analysis of the fi na nc nc ial arrangement (lease a gr gr ee e me nt nt or or sale transaction) bet we e en e the parties , and receiv es es h tt ti f l t t titi b mu ch ch more a tt en ti on f rom r ea ea l es t a t e prac titi oners b ec au au se the la w w ca n be violate d, witho ut ut i nt ent or knowledge, if the part ie e s s do not fi t the tr an sact io n with an applicable S tark exce pt t io io n and meet each and ev ev er e y element of the exception. The Stark exc ep ti ti o o n for offi ce leases gen er er al ly includes : • the lease is in writi ng ng , specifi es the premis es s , and is signed by both parti es ; • the lease is for a term of a t t least one year; • payments are made in adv an n ce c and are consistent wi i th th fair market value in an arm's-le ng ng th transaction; • the premises should be used excl us us ively and are reason- ab b le le e le le le e a nd nd d nd d n n ec ec es sary for the legitimate bu b siness purpose of th th th th h th h th th h th h e e e te te te te te te e na na na na na na na na n nt nt nt nt nt nt n ; • rental rate is not determined in a ma nn nn er that takes in to to consideration the value of any referrals o r ot her business b etween the parties; and • the agreement would be commercially reason ab ab le even if no referrals were made between the parties. A A qualifi ed real estate professional can provide an in de pe pe pe nd ent and objective opinion to satisfy the exceptio ns ns — es pe e ci ci c al a ly with respect to fair market value of the lease rate and t he he e commercial reasonableness of lease terms. In p roviding th is f ai a r market assessment, the broker should be knowledge ab b le e le o f the healthcare real estate market with respect to compa ra bl bl bl e properties including medical and non-medical buildings an an a d understand the terms fa ir market value and e c ommercially r ea ea a so s nable , as they are defi ned in the applicable regulations an n d s tatutes. I n addition, a healthcare real e st st ate attorney should be co nsulted on these matters. — G re e go go g ry P. Gheen, CCIM PHYSICIAN/HOSPITAL LEASES Hospital Construction Survey Property Type Plan to build (% of respondents) 2014 2012 Medical offi ce building 18 15 Ambulatory surgery center 17 11 Neighborhood outpatient facility 22 15 Neighborhood primary care clinic 21 16 Source: Healthcare Facilities Magazine 2 2 - 2 5 F - M e d i c a l O f f i c e - G h e e n . i n d d 2 4 22-25 F-Medical Office-Gheen.indd 24 4 / 2 9 / 1 4 2 : 4 7 P M 4/29/14 2:47 PM