Author: Courtney Patterson

January 8, 2026

Posted on by Courtney Patterson

QUESTION:
I noticed in the Your Government at Work section of this week’s HLE that the financial limits in the Stark Law have been updated for Calendar Year 2026.  What do these limits mean and how do they apply now that we employ so many physicians?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Yes, the limits for Calendar Year 2026 apply and this is a good opportunity to update your compliance program to include the new 2026 limits.  But they may not be as relevant today as they have been in the past.  In order to describe how, and to whom, these limits apply, requires some background information on the Stark Law.

Nonmonetary Compensation – New Limit $535/year
The “nonmonetary compensation” exception to the Stark Law (42 C.F.R. § 411.357(k)) permits a hospital to make gifts to the physicians on the hospital’s medical staff, other than cash or cash equivalents, in an aggregate, annual amount that does not exceed the then applicable annual limit.

When this exception was adopted, this limit was $300.  However, after years of adjustment, the limit for calendar year 2026 is $535.  CMS will continue to update this amount annually and the current annual limit may be found in Your Government at Work section of this week’s HLE.

Even when indexed to inflation, the calendar year maximum amount makes this exception of limited utility.  Furthermore, in order to satisfy this exception, the hospital must track all such  gifts, the gifts must not be determined in any manner that takes into account the volume or value of referrals or business generated by the physician who receives the gift, and the gift may not be solicited by the physician.

There have been two recent changes to this exception:  (1) no more often than once every three years, a physician who has inadvertently received non-monetary compensation of up to 50% in excess of the then applicable limit may repay the excess within the earlier of the same calendar year or 180 days of receipt of the excess, and (2) a hospital or other DHS Entity may provide one medical staff function per year for the entire medical staff without regard to any monetary limit.

Unfortunately, in order to comply with this exception, hospitals and other DHS entities must track the value of all of the gifts provided to each physician during each calendar year.  Also, while the cost of the annual medical staff event is not counted against the then annual limit, any gifts or gratuities provided in connection with that event (including “door prizes”) will be subject to the annual limit.

Medical Staff Incidental Benefits – 2026 limit $46/Benefit
While it is helpful that CMS has recognized that the Stark Regulations should include an exception that recognizes a number of traditional relationships between a hospital and the physicians who are appointed to its medical staff, this exception is relatively narrow and has a number of requirements, including the requirements that the item or services must be:  (i) offered to all staff members practicing in the same specialty without regard to the volume or value of their referrals to the hospital; (ii) provided only during periods when the medical staff members are making rounds or are engaged in other activities that benefit the hospital or its patients; (iii) used by the medical staff member “on the hospital’s campus”; (iv) reasonably related to the delivery of medical services at the hospital; and (v) not intended to induce referrals.

Also, the item must be of low value.  Originally, each item was valued at $25, and is subject to the same inflation adjustment used in the non-monetary compensation exception.  That is how CMS arrived at the $46 per benefit in calendar year 2026.  Future updates can be found at the same area of the CMS website as the update for non‑monetary compensation.

The Regulations also make it clear that internal access pagers, two-way radios and radios used away from campus to access patients and personnel on the hospital’s campus as well as identifying medical staff appointees on the hospital’s website or in hospital advertising, will meet the “on campus” test.  However, facilities that are owned or operated by a hospital will not be considered to be on the hospital’s “campus.”  Also, this exception does not apply to advertising or promotion that is intended to market a particular physician or his or her private practice.

This is the so-called “free lunch exception.”  Therefore, assuming that all of the requirements to the exception are met, a hospital may provide free meals, free parking or any other “on campus” incidental benefit that it normally provides to all members of its medical staff practicing in the same specialty without fear that that benefit will be construed as a prohibited compensation arrangement, so long as each individual benefit (i.e., each meal) is less than the per benefit amount described above.  There is no upper limit on the total amount of the medical staff incidental benefits, nor is there a requirement to track the total amount of medical staff incidental benefits provided to a medical staff member in any year.

Limited Remuneration to a Physician – 2026 Limit $6,237
This is an exception that was added on January 19, 2021 Rules that permits limited remuneration to an independent practicing physician for items or services without a written agreement (42 C.F.R. § 411.357(z)).  Remember that an employed physician is not required to have a written agreement so this exception will not apply to employed physicians.

Initially the limit for this exception was $5,000 per year.  However, that limit has increased annually and in 2026 this rule protects remuneration from a DHS Entity to an independent practicing physician for the provision of items or services provided by the physician to the entity that does not exceed an aggregate of $6,237 in calendar year 2026.  As with the exceptions described above, each year this amount will be further adjusted for inflation and can be found at the same place.

This exception can be of very helpful to cure technical violations of the Stark Law where an independent practicing physician may have been paid for a service without a written agreement.  But in order for this exception to apply, the total amounts of the payments to an independent practicing physician in calendar year 2026 cannot exceed the $6,237 limit, and the payment must satisfy all of the following conditions:  (i) is for items or services actually provided by the physician; (ii) is not determined in any manner that takes into account the volume or value of referrals or other business generated by the physician; (iii) does not exceed the fair market value of the items or services; and (iv) the arrangement would be commercially reasonable even if no referrals were made between the parties.

This exception may also be used for a lease but be sure to check the regulations since there are additional lease-specific rules that apply.  CMS has also stated that this exception will apply to all direct remuneration between a DHS Entity and a physician, regardless of how many such arrangements may be entered into in a calendar year.

CMS has stated that it does not expect this exception to cause hospitals and other DHS Entities to become lax in their compliance efforts.  However, as a result of the Stark self-disclosure process, CMS has recognized that a number of non-abusive, low value, compensation arrangements may be entered into that are not reduced to writing but otherwise comply with an exception.  CMS intends for this exception to protect such arrangements and by doing so should decrease the number of technical violations of the Stark Law that have in the past been submitted to the CMS self‑disclosure protocol.

Other Exceptions May Apply
Please keep in mind that these rules were adopted at a time when not as many physicians were employed as they are today.  As stated above, a written agreement is not required with an employed physician and so the limited remuneration exception is not needed for an employed physician.  With regard to the other exceptions described above, since a hospital or other DHS Entity is only required to comply with one Stark exception, there may be employment‑related policies that will apply in place of these rules.

Also, keep in mind that an independent practicing physician may be subject to a written agreement that may render these rules irrelevant.

So, these rules are helpful, but are much less relevant today than they have been in the past. 

If you have a quick question about this, e-mail Henry Casale at hcasale@hortyspringer.com.

Join HortySpringer partners Dan Mulholland and Henry Casale at the Hospital-Physician Contracts and Compliance Clinic Seminar in New Orleans April 9-11, 2026 and/or in Las Vegas November 5-7, 2026, to learn more about recent cases and trends, the happenings in Washington, DC that will affect health care providers, the OIG, the Anti-Kickback Statute, the Stark Law, the False Claims Act, and many more issues needed to navigate the new regulatory landscape confronting health care providers in 2026 and beyond.

And for a sassier discussion of recent cases involving the Anti-Kickback Statute and the False Claims Act, check out our latest episodes of The Kickback Chronicles podcast.

December 11, 2025

Posted on by Courtney Patterson

QUESTION:
Our health system employs doctors through a “captive PC” where the CMO is the sole shareholder of the professional corporation but has no right to any distribution of profits or other rights normally related to ownership in a private medical group.  Does the Stark Law still apply to arrangements between the hospitals in our system and the captive PC?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:
No.  In 2020, the definition of “ownership or investment interest” for the purpose of the Stark Law was amended to state that it does not include:  “A titular ownership or investment interest that excludes the ability or right to receive the financial benefits of ownership or investment, including, but not limited to, the distribution of profits, dividends, proceeds of sale, or similar returns on investment.”  42 CFR §411.354(b)(3)(vi).  This codified the conclusion of CMS Advisory Opinion AO-2005-08-01.  In that Advisory Opinion, CMS  concluded that stock ownership by physicians in a nonprofit corporation did not constitute an ownership or investment interest for the purposes of the Stark Law because the stock held by the physician-shareholders exhibited none of the benefits typical of stock ownership.

So, the fact that the hospitals in your situation may subsidize losses incurred by the captive PC would not, in and of itself, have Stark Law implications as it would if the hospital was subsidizing an independent practice.  However, to the extent that there would likely be indirect compensation arrangements between the hospitals and the employed physicians, it would still be necessary to make sure the compensation paid to the doctors reflects the fair market value of their services and is commercially reasonable.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

December 5, 2025

Posted on by Courtney Patterson

QUESTION:
At the Complete Course for Medical Staff Leaders, you mentioned the importance of transparency and meaningful notice to applicants, members of the medical staff, and other practitioners who have been granted privileges.  What is the obligation to send written notice to an applicant that a waiver process is available, a waiver request has been granted, and/or a waiver request has been denied?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Transparency in medical staff affairs is not only about ensuring medical staff members and other practitioners with privileges have access to Medical Staff Bylaws and other medical staff policies and rules and regulations, and are notified to any major changes to those documents.  It also includes providing meaningful and timely notice to applicants and practitioners about matters involving their credentialing and peer review.  This includes providing notice that an application is not going to be processed, as well as the reason why (whether it’s because the applicant has requested clinical privileges that are not available at the hospital, because the applicant does not satisfy the threshold eligibility criteria set forth in the Medical Staff Bylaws or Medical Staff Credentials Policy, or because the application is incomplete – to name just a few reasons).

Many hospitals and medical staffs choose to include in the Medical Staff Bylaws (or Credentials Policy) a process for requesting a waiver of one or more of the threshold eligibility criteria, in the event an applicant fails to satisfy the criteria and nevertheless wishes to receive additional consideration and have an application subjectively considered.  Generally, waivers are considered only if the applicant provides substantial evidence showing that there are exceptional circumstances and that the applicant’s qualifications (clinical performance, professionalism, etc.) are just as exceptional, if not more, than other individuals who satisfy the criteria for which the applicant is requesting waiver.

While most hospitals and physician leaders agree that it is important to notify the applicant if a waiver request is denied, we are occasionally asked whether it is necessary to provide the reason for the denial.  Provided you have good waiver language written into your Bylaws/policies, the burden is on an individual requesting waiver to demonstrate that waiver is appropriate and an exception to the general rule of non-eligibility/ non-consideration should be made.  Therefore, if the MEC and Board have determined that the applicant has not met the burden of demonstrating they are an appropriate candidate for a waiver, it should suffice to simply state that after considering all of the information submitted by the applicant, the Board determined that a waiver is not appropriate and, in turn, the application cannot be processed further.

Should you also notify an applicant in writing if a waiver is granted?  This question is rarely asked since, in most scenarios, the applicant is happy to receive a waiver and, in turn, there are rarely disputes about waivers that have been granted (rather than denied).  Nevertheless, there are a couple of reasons that you may wish to consider providing notice to the applicant when you grant a waiver:

  • First, whenever a waiver is granted (or denied), it is a good idea to articulate and document the reason, in order to create institutional history of all waivers that have been considered and the outcome. This is important for tracking whether the hospital is methodically upholding the threshold eligibility criteria and for ensuring consistency with respect to any waivers granted/denied (e.g., are similarly situated requestors being treated similarly?).  Ultimately, an eligibility process is administrative – rather than subjective – only if the threshold eligibility criteria are objective and those criteria are applied consistently to individuals.  So, having a record of consistent application helps the hospital in the long run.  Of course, you could create the documentation through meeting minutes or other records of the action taken.  But, in our experience, the articulation/documentation of waivers often falls through the cracks.  Adopting a process of notifying the applicant whenever a waiver is granted might help to close that gap.
  • Perhaps more importantly, however, notifying an applicant of the grant of a waiver also provides an opportunity to document (and inform the individual) of any time limits or other conditions associated with the waiver.

For example, if an individual is granted a waiver of an MOC (maintenance of board certification) requirement due to an exceptional circumstance that prevented them from completing the MOC requirements during their previous appointment term (e.g., extreme illness or family emergency), the hospital might grant a short-term waiver (e.g., one appointment term), to be revisited at the time of the next reappointment cycle.  If the waiver will be temporary, rather than permanent, it is important to notify the applicant/practitioner so that they will have realistic expectations and not be caught off guard when the criterion is applied in the future.

The same is true for any conditions that may attach to the waiver.  For example, if you have decided to grant a waiver of a threshold eligibility criterion requiring recent clinical experience exercising the requested privileges in a facility of comparable acuity, that waiver might be conditioned on the individual complying with a re-entry plan that includes continuing medical education and/or observation/shadowing to be completed prior to commencing clinical activities at the hospital, requirements for proctoring, consultation, or serving as an assist when initially commencing clinical activities at the hospital, and/or other FPPE activities.  If the waiver is conditional on the applicant agreeing to – and complying with – those conditions, it is important to notify the applicant and make it clear that the waiver may be forfeited (with the individual then failing to be eligible for continued medical staff appointment/privileges) if they do not comply.

If you have a quick question about this, e-mail this week’s editor, Rachel Remaley, at rremaley@hortyspringer.com.

November 20, 2025

Posted on by Courtney Patterson

QUESTION:
A patient recently presented to our hospital with a pet turkey, claiming it as a service animal.  Do we have to allow the turkey into our facility?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
There are only two ways that a hospital can legally be required to allow a patient to bring an animal into the hospital:  (1) if it is a service animal, and (2) depending on state and local law, if it is an emotional support animal.

Service Animals
The Americans with Disabilities Act (“ADA”) requires that local governments, businesses, and nonprofits that service the public allow service animals to accompany individuals with disabilities into their facilities.  As long as the public is allowed in a certain part of a facility, the service animal is also permitted to go.  The ADA even specifically states that hospitals must generally allow service animals anywhere in the hospital the public and patients are allowed to go, including patient rooms.

The ADA has narrowly defined “service animal” to mean “dogs that are individually trained to do work or perform tasks for people with disabilities.” The ADA also has a special exception to this definition that specifies that miniature horses, who are trained to do work or perform tasks for people with disabilities, can also qualify as service animals.

Unfortunately for turkeys – who may have excellent gobbling skills but questionable bedside manner – there is no similar exception.  Even the most disciplined, Harvard-educated turkey could never legally qualify as a service animal.  Tough break, birds.

Emotional Support Animals
There is no ADA requirement that mandates facilities allow emotional support animals indoors.  However, some state and local governments have laws that allow individuals to bring emotional support animals into public spaces.  So, before you issue an all-out ban on emotional support animals, double check state and local laws to see if there are any rules on emotional support animals and the parameters on what qualifies as an emotional support animal.

So, unless you live in a state where state and local laws say otherwise about emotional support animals, your hospital can turn away our feathered friends at the door.  They may protest with some dramatic gobbling, but legally, you’re still in the clear.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

November 13, 2025

Posted on by Courtney Patterson

QUESTION:
We just found out that a member of our Medical Staff was arrested and charged with domestic battery, assault, terroristic threats, and unlawful possession of a firearm.  The charges were brought by the physician’s now ex-girlfriend.  Pictures of the girlfriend are floating around, and they were pretty bad.  The physician swears it was all in self-defense and that his girlfriend “lost her mind” when he tried to break up with her.  What do we do?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Ideally, your Bylaws, or Credentials Policy, include language which allows you to trigger an administrative relinquishment in a situation like this.  Specifically, we recommend the Bylaws provide:  “The occurrence of specific criminal actions, including an arrest, charge, indictment, conviction, plea of guilty or plea of no contest, pertaining to any felony or any misdemeanor involving…a violent act will result in an automatic relinquishment of appointment and clinical privileges.”

This languages allows you to effectively address the situation without imposing a suspension, triggering an investigation, or making a recommendation for an adverse professional review action.  If the charges are dropped, the physician can seek reinstatement from the relinquishment.

The automatic relinquishment language works so well that we recommend including it in the Bylaws, or Credentials Policy, to address other sticky situations including:  (1) failure to complete medical records; (2) failure to satisfy threshold eligibility criteria; (3) failure to provide requested information; (4) failure to attend a mandatory meeting; (5) failure to complete or comply with training or educational requirements; and (6) failure to comply with a request for fitness for practice evaluation.

If you don’t have language in your Bylaws Documents that would allow you to trigger an automatic relinquishment, you may try to get the physician to take a leave of absence, or to voluntarily agree to refrain from practicing while the criminal matter is playing out in the courts.  In situations like this, the physician is often focused on the criminal charges and may be willing to resolve the medical staff issue in a nonconfrontational way.

If this doesn’t work, you may have to consider disciplinary action, including a precautionary suspension, investigation, recommendation to revoke appointment and privileges, and a hearing and appeal.  This course of action may be needed not only to protect patients and staff, but also to protect the reputation of the hospital and the medical staff.

It is extremely unlikely that the physician’s criminal defense counsel would allow the physician to participate in these processes.  However, it is important that you adhere to your Bylaws Documents and offer all the process the Bylaws promise.

If you have a quick question about this, e-mail Susan Lapenta at SLapenta@hortyspringer.com.

November 6, 2025

Posted on by Courtney Patterson

QUESTION:
When a concern is raised about the behavior of a Medical Staff member, we’ve typically referred it to our department chairs to handle.  Some chairs do a really good job addressing these issues while others, well, let’s just say they struggle.  We were wondering if there’s a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes!  There are multiple drawbacks to asking a single individual – regardless of who that person is – to deal with difficult behavioral matters.

First, the department chair is often either a competitor or partner of the physician under review.  This can make it difficult for the department chair regardless of whether an actual “conflict of interest” exists.  Also, depending on the size of a department, the department chair may not deal with many behavioral concerns.  As a result, the chair never obtains enough experience to become truly comfortable addressing behavioral issues.  Finally, as your question might be hinting at, not all department chairs are created equal – some may have great leadership qualities, and some may be serving only because it’s a role that they are forced to rotate through in a particular department.

The bottom line when it comes to behavioral issues – especially ongoing patterns of conduct – is that it requires leadership expertise to address, not clinical expertise.  For that reason, we recommend appointing a small core group of experienced leaders – often referred to as a Leadership Council – to handle behavioral concerns.  The Leadership Council might be comprised of the Chief of Staff, Vice Chief of Staff, Chair of the Peer Review Committee, and the Chief Medical Officer.  Regardless of what it’s called, the advantages of using a Leadership Council approach to handle behavioral concerns include:

  • consistency across departments (no more variability based on the personality and leadership skill set of individual department chairs);
  • easier to avoid conflicts of interest;
  • permits department chairs to preserve their working relationships with physicians under review;
  • expertise through experience;
  • emphasizes the importance of the issue and enhances the credibility of the physician leadership because a group of seasoned leaders – not a single person – is speaking with the physician under review; and
  • problems are discussed by a small and nimble group, which promotes the exchange and development of ideas on a real-time basis.

If you have a quick question about this, e-mail LeeAnne at lmitchell@hortyspringer.com.

October 30, 2025

Posted on by Courtney Patterson

QUESTION:
Are the CMS telehealth flexibilities gone for good?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
On September 30, 2025, many of the pandemic-era Medicare telehealth flexibilities expired.  This included such provisions that allowed Medicare recipients to receive non-behavioral/mental health care in their homes and removed geographic restrictions on originating sites for such services.  With their expiration, the statutory limitations that had been waived during the COVID-19 public health emergency are now back in effect.

Since the end of the COVID-19 public health emergency, Congress has repeatedly extended telehealth flexibilities to allow time for further consideration of their permanence. In September, several bills were introduced to extend the remaining flexibilities for periods ranging from seven weeks to two years, aiming to prevent a “telehealth cliff.”  Unfortunately, before any action could be taken, the government shut down.

Since the expiration of the flexibilities, we have not heard much in terms of next steps for telemedicine.  So far, CMS has indicated that practitioners who choose to perform telehealth services that are not payable by Medicare on or after October 1, 2025, may want to consider providing beneficiaries with an Advance Beneficiary Notice of Noncoverage (“ABN”).  CMS has also noted that practitioners may choose to hold claims associated with telehealth services that are currently not payable by Medicare in the absence of Congressional action on the flexibilities.

When the government reopens, we will be watching closely to see what, if any, action Congress takes to reup some of these flexibilities or make them permanent. Unfortunately, for the time being, to guarantee payment, healthcare entities need to provide telehealth services within the confines of what CMS billing rules require, which means without many of those flexibilities we have become accustomed to. CMS issued an updated list of FAQs earlier this month to help sort through many of the changes.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

October 23, 2025

Posted on by Courtney Patterson

QUESTION:
We’ve been sending our Medical Staff leaders to your seminars for years.  However, we think it might be helpful for our “rank and file” Medical Staff members to also get some education on issues like why professionalism counts – and how it could send their careers down the drain if they don’t mind their p’s and q’s. Is this type of education available from HSM?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
It is.  While most of our educational offerings (seminars, on-sites, webinars, etc.) are focused on Medical Staff leaders, we have also worked with hospitals and systems to develop tailored educational programs for the general members of their Medical Staff.

Sometimes these programs are integrated into a regularly scheduled Medical Staff meeting, but we’ve also been asked to create specialized programs that are presented (sometimes multiple times over the course of several days) as stand-alone educational sessions that allow general Medical Staff members the opportunity to obtain CME on topics such as EMTALA, impairment issues, and (of course) why professionalism counts.

If this type of specialized training could benefit your Medical Staff, please reach out to our Program Coordinator Jennifer Skeel. Jennifer can work with you and one of our attorneys to develop a tailored program for your organization.

If you have a quick question about these educational programs, you can also e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

October 16, 2025

Posted on by Courtney Patterson

QUESTION:
I serve on the peer review/MEC in one hospital system and as department chair at another regional system.  A physician is under FPPE for very serious patient safety concerns at the first system, and he has now applied for privileges at the second system (where I am department chair).  I don’t think I can divulge any protected information I have knowledge of.  What can I do?  (Registrant Q&A, submitted electronically at The Complete Course for Medical Staff Leaders, held in Nashville (Spring 2025).)

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
You are in quite the pickle!  To avoid this scenario, we have historically advocated for Medical Staff leaders to avoid, if possible, serving in leadership roles at multiple nearby hospitals.  But, we understand that leadership pools are shallow and leadership functions are being performed by a very small minority of do-gooders within medical communities.  Further, we observe that it is quite common for medical directors of hospital-based services to serve as department chairs at multiple facilities.

Luckily, you can likely find a solution to your conundrum that will allow you to satisfy your obligation to protect patients at system #2 (where you are department chair), while also fulfilling your duty of loyalty and confidentiality to the first system (where you serve on the peer review committee and MEC).

Specifically, in a situation such as this, the best way forward may be to take action to cause system #2 to make a request to system #1 for information concerning the practitioner in question.  In other words, as department chair at system #2, you could – as part of your evaluation of the application in question – contact system #1 to request an updated affiliation verification or an updated reference (for example, from the department chair and/or CMO at system #1).

You would not need to specify the exact reason for asking for the information.  It should suffice for you to state that, as department chair, you believe it is appropriate and necessary to request further information about the practitioner’s tenure at system #1 (if pressed, you should not have to say anything more than “confidentiality requirements prohibit me from providing any additional explanation”).  Of course, to avoid any appearance of impropriety or any allegation that you inappropriately divulged protected or privileged information, it is probably best to have the request for information from system #1 occur in writing (rather than via a telephone call or in-person conversation).  From a practical perspective, that might mean contacting the Medical Staff Services Department at system #2, to let them know that you recommend system #1 be contacted for more information regarding the physician’s affiliation.

Note that any request for information that is sent should be worded broadly enough to ask not only about any adverse professional review actions (e.g., revocations, suspensions, restrictions), but also any other recent or pending focused reviews of the practitioner and/or performance improvement plans involving the practitioner.  With this step taken, there would be no need for you to violate any confidentiality requirements that apply at system #1 by revealing additional details.  You could simply sit back and wait for the reply from system #1.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

October 9, 2025

Posted on by Courtney Patterson

QUESTION:
What’s the status of the Federal Trade Commission’s non-competition rule?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
In April 2024, the Federal Trade Commission (“FTC”) finalized a rule that banned most non-competition clauses nationwide.  However, federal courts in Texas and Florida issued injunctions and blocked the FTC from enforcing the rule.  The FTC appealed those rulings, but in September 2025, the FTC withdrew its appeals of the injunctions.  So, the ban is no longer in effect and the FTC is no longer trying to enforce it.  The below is from the FTC’s website:

The Noncompete Rule is not in effect and it is not enforceable.  On August 20, 2024, a district court issued an order stopping the FTC from enforcing the rule.  The FTC appealed that decision on October 18, 2024.  On September 5, 2025, the FTC took steps to dismiss its appeal in the Fifth Circuit.

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.