What is "safe" about the government's recent interpretation of the anti-kickback statute safe harbors? ... and since when was Stark an intent-based statute?

The volume-or-value standard is an element of several anti-kickback safe harbors and Stark exceptions. It provides that compensation may not be determined in a manner that takes into account the volume or value of business generated between the parties. The government has recently indicated that it may interpret the standard to exclude arrangements that are merely influenced by the volume or value of referrals. The author contends that this opens the door to examination of the parties' intent, which is contrary to legislative intent. The Article argues that the volume-or-value standard should be interpreted objectively.