Latest blog entries http://mdrxlaw.com/publications/latest Thu, 18 Dec 2014 05:31:16 -0500 Joomla! - Open Source Content Management en-gb MDRXLaw Sponsors the New York Chapter of the American College of Healthcare Executives http://mdrxlaw.com/publications/2-medicaid-and-medicare/30-mdrxlaw-sponsors-the-new-york-chapter-of-the-american-college-of-healthcare-executives http://mdrxlaw.com/publications/2-medicaid-and-medicare/30-mdrxlaw-sponsors-the-new-york-chapter-of-the-american-college-of-healthcare-executives MDRXLaw is proud to announce its sponsorship of the Healthcare Leaders of New York, the New York chapter of the American College of Healthcare Executives.

HLNY represents professionals who manage the business affairs of healthcare organizations throughout the New York Metropolitan area. No other professional association is more essential for meeting the career needs and interests of healthcare executives in New York State.  The 1600 members come together for networking and events, career advancement, professional enrichment, and continuing education.  The parent organization, American College of Healthcare Executives, unites over 45,000 healthcare executives across the United States.  The goal of the organization is to advance its members and healthcare management excellence.

Alec Sauchik, Esq. is a member of the American College of Healthcare Executives.

 


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info [AT] mdrxlaw [DOT] com (Administrator) Highlights Sun, 07 Dec 2014 20:39:11 -0500
Where to Start Your Practice – Critical Lease Considerations http://mdrxlaw.com/publications/2-medicaid-and-medicare/29-where-to-start-your-practice-%E2%80%93-critical-lease-considerations http://mdrxlaw.com/publications/2-medicaid-and-medicare/29-where-to-start-your-practice-%E2%80%93-critical-lease-considerations The medical industry is likely the most regulated industry in the U.S. and business arrangements, including landlord-tenant arrangements are subject to scrutiny in an increasingly strict regulatory environment. Prior to executing a lease, healthcare providers opening an office, regardless of the size, should always have an expert healthcare attorney review the lease agreement. In addition to the usual lease concerns such as conditions governing: the term and options to renew, repair responsibilities, utility requirements, real estate taxes, etc., healthcare providers have additional considerations unique to their practice. Some components healthcare providers should have an experienced healthcare transactional attorney review and negotiate include:

·         Healthcare laws and regulations – providers must ensure that their lease agreement is compliant with all applicable federal and state laws, rules, and regulations, including but not limited to, the federal anti-kickback laws (42 U.S.C. § 1320a-7b) and Stark law (42 U.S.C. § 1395nn), the regulations promulgated there under, and equivalent applicable state laws.



·         The landlord-healthcare tenant relationship – Medical offices, which are usually in medical office buildings, have additional concerns unique to the medical office building setting. These leases require an extensive analysis to safeguard against common healthcare lease pitfalls, such as construction build out issues; office sharing issues, including use of medical equipment and staff; subleasing, assignment, and termination issues; as well as medical malpractice and general liability insurance issues.



·         Non-compete and restrictive covenants – providers should ensure that their lease does not violate any existing restrictive covenants contained in any other lease entered into by the landlord or provider. Moreover, they should include their own non-compete provisions to protect their office from competition from other potential renters in the office building. Providers should seek guidance from an experienced healthcare attorney as they have an in-depth understanding of the healthcare economy and market conditions, and as such are better positioned to negotiate these provisions.

If you are planning to open a new office, whether in New York or another state, do not hesitate to call our firm and speak with one of our experienced healthcare attorneys. We have the comprehensive knowledge to ensure your interests are effectively protected while your practice grows! Please do not hesitate to contact our firm for a consultation with one of our knowledgeable healthcare attorneys by phone at 212-668-0200 or via email at info [AT] mdrxlaw [DOT] com.


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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Medical Practice Management Thu, 23 Oct 2014 14:17:42 -0400
NEW EVENT: Physician Audits: Dealing, Surviving and Growing Beyond http://mdrxlaw.com/publications/6-highlights/28-new-event-physician-audits-dealing-surviving-and-growing-beyond http://mdrxlaw.com/publications/6-highlights/28-new-event-physician-audits-dealing-surviving-and-growing-beyond Read More]]> info [AT] mdrxlaw [DOT] com (Administrator) Highlights Tue, 21 Oct 2014 14:24:51 -0400 S&G scores a litigation victory for a food importing and distribution company http://mdrxlaw.com/publications/s-g-scores-a-major-victory-for-a-food-importing-and-distribution-company http://mdrxlaw.com/publications/s-g-scores-a-major-victory-for-a-food-importing-and-distribution-company In a recent decision, Justice Velasquez of Kings County Supreme Court held that our clients, a major importing and distribution company and its principal, were not guilty of civil contempt.  The decision follows a two-day contempt hearing.  In separate decisions, Justice Velasquez declined to reconsider his denial of the plaintiff's motion for a preliminary injunction and permitted counterclaims to proceed against our clients' opponent. 

Our clients operate a food importing and distribution business in Brooklyn, New York.  Another distribution company brought a lawsuit, seeking damages and injunctive relief against our clients.  The plaintiff alleged that our client's principal had misappropriated trade secretes that permitted him to open a competing business.  Even though a limited temporary restraining order was entered at the commencement of the case, it was soon vacated.  The plaintiff, nevertheless, alleged that during the time when the TRO was in effect, our clients violated the order, and moved for civil contempt.  A two-day contempt hearing followed, after which the court held that not only did the plaintiff not prove, by clear and convincing evidence, the required elements of civil contempt, but also that much of the underlying case had no merit.  In doing so, the court credited our client's testimony and affidavits, and discredited most of our opponent's submissions.  In a separate decision, the court declined to dismiss our client's counterclaims.

Alec Sauchik, Esq. of Sauchik & Giyaur, P.C. is handling the matter.


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info [AT] mdrxlaw [DOT] com (Administrator) Recent Successes Sat, 04 Oct 2014 16:40:05 -0400
A hospital approaches you with an offer to buy your practice- What Now? http://mdrxlaw.com/publications/a-hospital-approaches-with-an-offer-to-buy-your-practice-what-now http://mdrxlaw.com/publications/a-hospital-approaches-with-an-offer-to-buy-your-practice-what-now What should you do when a hospital approaches you with an offer to buy your practice?  Will the hospital ownership make your practice prosperous and efficient, or will it destroy the goodwill that you have worked so hard to build, and lead to a significant income reduction?

You may have heard horror stories about newly-acquired practices quickly collapsing due to incompetent hospital management.  Indeed, between 1995 and 2002, hospital-owned physician practices generally suffered significant operating losses. The pace of acquisitions ground to a halt, and hospitals began selling.  However, since 2007, acquisitions have picked up, and in the last five years the trend has reached historic proportions.  Hospital administrators have learned from past mistakes and do things differently now.  Today, large organizations and hospitals seeking to buy private practices have more realistic approaches and viable strategies. If your motivation is aligned with your expectations, and the price is right, the marriage could be a happy one. 

The post-acquisition viability of the practice is practically always critical to the seller.  Most of the time, hospitals offer to keep the principals employed at the old setting, albeit under a different management.  Often, the purchase price depends on post-acquisition revenues and patient retention.  It is important, therefore, to understand what will happen with the practice after the sale.  But how do you know that the offered arrangement is viable, and the deal has a potential? If the hospital administrator is asking the right questions about your motivations and realities of your practice, and offers a realistic vision for you, your staff and your patients, this is a good start. 

Does the hospital understand what motivates you to consider selling your practice?  Are your physicians nearing retirement and want to ensure a smooth exit strategy? Is the practice sinking financially under the weight of employment costs? Are you just tired of the administrative burdens of running the practice in light of declining reimbursements, EMR costs, and uncertainties about the health reform?  Do you want to improve your work/life balance? Whatever the reasons, you should be upfront about your motivations, and convey them to the hospital administrator.  When the hospital understands what drives you to sell, this will make for a much better transition.

Is the hospital looking to fully evaluate, not just valuate your practice?  The hospital needs to understand what really drives your practice and its revenues.  Who are the key players? What politics is involved in managing the practice? Are key people planning to leave?  What are the practice's referral sources? Which key relationships will be preserved and which ones will not?  The hospital needs to do its homework to understand these and similar issues that really make the practice what it is, and you should help in painting the full picture. 

Is the hospital willing to structure a compensation plan that will keep the doctors productive, efficient and happy?  The hospital should offer you compensation plans that really make sense and keep the doctors productive and invested in the outcome.  If the compensation structure seems too complex, it will probably not work to your advantage.  Insist on understandable and manageable arrangements, which, while putting a portion of your compensation at risk, give you a significant stake in the outcomes.

Is the hospital willing to be flexible with the deal?  If the hospital tells you to "take it or leave it," run away.  This is a sure sign that, if you agree to sell under pressure, you will lose all power to influence your future relationships with the management, and will end up just becoming another cog in the wheel.  A good deal presumes flexibility and attention to your individual needs.

Who will manage the practice?  A practice manager's personality and experience are fundamental to the success of the practice.  The person needs to be given full authority over staff, and must be able to represent the interests of both the hospital and physicians.  Managers with practice, not hospital, experience tend to fit best.  Always ask the hospital administrator who will be in charge of management to ensure that the interests of the selling team will be represented.

What will happen to the billing system?  Even if your computer and billing system is not perfect, the hospital should not be replacing it with the one that is geared towards hospitals, not private practices.  Make sure the transition is not abrupt to minimize the stress, inevitable confusion and potenial revenue loss.

Will the hospital provide a cash infusion into the practice's operating budget? The hospital needs to realize that there will be some revenue loss at first due to recredentialing the doctors, obtaining new provider numbers and renegotiating insurance contracts.  Ask if the hospital is ready to support the practice through the transition period.

Will the hospital see the transition through even if things get off to a rocky start? If the relationship is not an entirely happy one at first, hospitals may be tempted to blame it on the doctors, and divest.  However, it is not unusual that in the first year or two both sides will have to adjust their relationships and expectations.  If things are not working out, adjustments rather than drastic measures should be tried at first.

As always, it is invaluable to enlist the help of knowledgeable professionals to help you to navigate the process of acquisition by a hospital.  Feel free to contact us at info [AT] mdrxlaw [DOT] com or by phone at 212.668.0200 to speak to an expert attorney with proven track record in practice acquisition representation.


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asauchik [AT] kspclaw [DOT] com (Alec Sauchik) Highlights Thu, 11 Sep 2014 13:05:08 -0400
Avoid these common mistakes when buying a medical practice http://mdrxlaw.com/publications/avoid-these-common-mistakes-when-buying-a-medical-practice http://mdrxlaw.com/publications/avoid-these-common-mistakes-when-buying-a-medical-practice buyOwning your own practice is one of the most rewarding ways to practice medicine.  Buying an existing practice at the right price could be a great way to immediately tap into an established patient base and avoid the stress and expense of building up a practice from scratch.  It is important, however, to avoid several common mistakes to ensure the smooth transition and post-acquisition value of the practice.   

  1. Not engaging professionals with expert knowledge of healthcare transactions.  By far the most common mistake that physicians make when acquiring a medical practice is not hiring the right professionals, or engaging a professional too late in the process.  Frequently, physicians engage counsel late in the game, when the contract is already drafted by the seller's attorney.  However, no matter the size of the acquisition, a potential purchaser is well-advised to seek help of qualified professionals as soon as both sides have preliminarily agreed to proceeding with the deal.  For instance, having an expert healthcare attorney conduct a preliminary due diligence can be invaluable in saving money and time.  An accountant well-versed in healthcare acquisition deals can suggest numerous negotiating points that can help to maximize the value of your acquisition.  And having an expert valuation specialist working for you, not the seller, review the practice's fundamentals can save you money and aggravation.  Do not worry about breaking the deal by engaging professionals early on!  The right seller will understand and cooperate. 
  2. Not understanding the practice's fundamentals and relationships.  Too often, when making the decision to buy, physicians would simply rely on the financials provided by the seller without understanding the seller's business relationships.  It is important to understand all sources of revenue and the relationships that drive the practice, and the relationship dynamic.  Where are the referrals for the practice coming from? Will it be possible to preserve these relationships after the acquisition? What are the legal and regulatory risks involved in these relationships?  What is the potential of continuing these relationships?  Will they conflict with the purchaser's plans for growth and expansion?  These and many other questions are critical in understanding the value of the practice and its potential for growth.
  3. Failing to conduct due diligence prior to purchase.  While most physicians understand the necessity and value of due diligence when acquiring a practice, the timing of conducting a due diligence is often overlooked.  Even if the acquisition contract provides for an opportunity to rescind the deal when the results of the due diligence are unsatisfactory, potential costly litigation and the prospect of losing their contract deposit may force physicians into disadvantageous deals.  
  4. Not keeping the deal confidential.  Failing to keep the deal confidential might result in the loss of critical employees, patients and business relationships even before the acquisition.  
  5. Entering into a deal that does not reflect the true market value of the practice.  Sometimes, the seller or buyer may decide, for a variety of reasons, to minimize the purchase price of the practice.  It is important to remember however that not only might this be considered an attempt to avoid taxes, but it might also constitute a violation of Stark Laws and anti-kickback laws governing healthcare providers.  Like any other agreement in the healthcare industry, the relationship between the buyer and seller must be commercially reasonable.  A knowledgeable attorney and tax professional will help you structure the deal to achieve your objectives without running afoul of the legal prohibitions while avoiding a chance of an audit or investigation due to the suspicious nature of the transaction.
  6. Not focusing on post-acquisition restrictions.  It is critical for the purchaser to insist, early in the process of negotiating the deal, on reasonable and meaningul restrictions on the seller's ability to compete with the practice, operate as an employee of another practice nearby, or solicit business of the practice.  If there is any doubt on the buyer's part that the seller might compete with the buyer post-acquisition, or attempt to divert the patient database to herself or others, the deal is too risky! 

This is just a brief sample of the issues often overlooked by prospective purchasers when negotiating a deal to purchase a practice.  While most of these seem common-sense, too often we see the excitement at the prospect of buying a practice clouding the judgment of a prospective purchaser.  Also, a prospective purchaser should always keep in mind that a well-counseled seller usually prepares their practice for sale well in advance of beginning the negotiation to maximize its attractiveness and perceived value.  The seller also benefits from the traditional opportunity of having its counsel draft the transfer documents, which usually puts the purchaser at a comparative negotiating disadvantage.  Hiring expert advisors early into the process will help you save time, effort and aggravation, while maximizing the value of your acquisition.  Feel free to contact expert medical attorneys and consultants at Sauchik & Giyaur, P.C. by email or by calling us at (212) 668-0200.


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asauchik [AT] kspclaw [DOT] com (Alec Sauchik) Highlights Wed, 10 Sep 2014 19:20:30 -0400
Why Do You Need to Hire an Attorney When Starting a Medical Practice in NY http://mdrxlaw.com/publications/why-do-you-need-an-attorney-when-starting-a-medical-practice http://mdrxlaw.com/publications/why-do-you-need-an-attorney-when-starting-a-medical-practice starting-smallFrequently, physicians who are looking to open a medical practice ask us a question: what can a healthcare attorney do for me to help me get started?

At first blush, the process of opening a medical practice is deceptively simple.  Indeed, with a few exceptions, a typical medical practice does not require a license or certificate to operate.  However, physicians who are tempted to just sign a lease and proceed with setting up a practice on their own quickly become inundated with a variety of issues that are best handled by an experienced and knowledgeable professional.  Hiring a knowledgeable healthcare attorney when setting up a practice can save you a great deal of time, effort and aggravation.

Below are just a few of the issues that we can handle for you quickly and efficiently.  

  1.  Corporate formation and choosing the right type of entity
    1. Choice of Entity - PC, PLLC, LLP, general partnership or solo proprietorship?  We will explain the advantages and specifics of each entity type and help you select the one that best suits your needs
    2. Requesting a consent from the Department of Education for the formation of the professional entity.  
    3. Properly filing the corporate paperwork to ensure the quick and efficient processing by the Department of State
    4. Setting up the initial set of corporate records, guidance on corporate governance.
  2. Governing agreements for PCs, LLPs, LLCs and general partnerships.  If your practice has more than one partner, you should at least have a very basic agreement governing the relationships among partners.  However, a well-thought-out, comprehensive agreement will dramatically decrease disruptive disputes among partners.
    1. Advising partners about voting rights, profit distribution, covenants not to compete, interest transfers and withdrawals, buy-outs, moonlighting, etc.
    2. Drafting shareholder and partnership agreements, LLP and LLC agreements, by-laws and other agreements governing relationships among partners
  3. Basic Legal Agreements
    1. We will review your personnel arrangements and advise you on how to structure relationships with hired physicians, allied professionals, nurses and support personnel
    2. We will explain to you the difference between independent contractors and employees, and how this distinction is relevant to the issues of professional liability, employment taxes, billing and reimbursement, wage and hour laws obligations, and the like
    3. We will draft employment and independent contractor agreements that protect you and your practice, as well help incentivize your employees and make them valuable contributors to your practice 
    4. We will help you set up employment-related policies and procedures; conduct background checks, and deal with labor and employment issues 
    5. We will review, draft and negotiate other agreements that your practice might require, including billing company agreements, EMR agreements, equipment leases and financing documents, and other types of agreements
  4. Leases and Office-Sharing Arrangements
    1. We have negotiated numerous leases involving physician practices, and are intricately familiar with all kinds of issues that your practice may face before, during and after occupying the medical space.  There is simply no substitute for having a knowledgeable healthcare attorney reviewing your lease!
    2. We will analyze the legality of, and negotiate, different office-, personnel- and equipment-sharing arrangements that can dramatically cut your costs of running a practice
  5. Policies, Procedures, Compliance and HIPAA requirements
    1. The establishment of properly drafted, comprehensive, written policies and procedures for dealing with a wide range of issues, such as patient privacy and fraud and abuse, is essential in the age of ever-increasing enforcement efforts by numerous agencies regulating medical practices
    2. We will advise you on your compliance obligations, and will help you establish the required policies, procedures and protocols that will ensure that you fully comply with your obligations from the start
    3. We will review your business relationships with others to ensure that the practice does not run afoul of anti-kickbacks, Stark and other state and federal laws and regulations

In conclusion, it is important to note that, while there are many attorneys who have experience with real estate and general business matters, only those attorneys who consistently represent medical practices and are on the cutting edge of current developments in this extremely complex and ever-changing field can provide you with the best and most efficient advice.  We have handled a myriad of healthcare-related transactions, and developed a deep understanding of the laws, regulations, and, most importantly, business of medicine to be able to provide you exceptional legal services.   Feel free to Contact our attorneys via email at info [AT] mdrxlaw [DOT] com or by calling us at (212) 668-0200 for a consultation when you are looking to open a medical practice.


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asauchik [AT] kspclaw [DOT] com (Alec Sauchik) Highlights Mon, 08 Sep 2014 19:24:37 -0400
Provider Audits - We Fight for Healthcare Providers' Rights http://mdrxlaw.com/publications/provider-audits-we-fight-for-healthcare-providers-rights http://mdrxlaw.com/publications/provider-audits-we-fight-for-healthcare-providers-rights  We provide expert advice and representation to healthcare providers who are facing third-party, Medicaid and Medicare audits.  Through years of experience and a careful approach to each individual case, we have developed strategies allowing us to protect provider rights and achieve great results, including multiple dismissals of audits.
Contact our healthcare attorneys for us to start fighting for your rights. Read More About Our Audit Defense Practice
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info [AT] mdrxlaw [DOT] com (Administrator) Alerts Fri, 08 Aug 2014 16:55:43 -0400
HMO Rate Cuts: Urgent Practical Guide http://mdrxlaw.com/publications/hmo-rate-cuts-urgent-practical-guide http://mdrxlaw.com/publications/hmo-rate-cuts-urgent-practical-guide
New York HMOs are conducting sweeping cuts to providers’ reimbursement rates. Although, the unilateral decision may seem unbeatable, an experienced healthcare attorney, negotiating on your behalf, can stop or reduce the cuts.

Providers who have contracted with HMOs understand the overwhelmingly one-sided agreements HMOs offer. Due to HMOs’ superior bargaining power and “take it” or “leave it” approach, providers are seemingly left with no room for negotiation. However, this is rarely the case.

Regardless of the HMO’s rationale, a seasoned healthcare attorney can fight back against the extremely unjust terms.

Healthcare marketplace intelligence and in-depth understanding of the factors affecting the operations of managed care networks are essential. With a thorough understanding of changing market dynamics, legislative changes, and rates of reimbursement of similarly situated providers, a healthcare attorney is in a better position to negotiate on a provider’s behalf. The importance of understanding the healthcare marketplace prior to opposing the cuts cannot be overstated. The extent an HMO will reduce or stop its cuts will depend on countless factors concerning the provider’s role in the network. Providers who attempt to negotiate their rates without an exhaustive understanding of their market are much less likely to prevail.

Further, an experienced and diligent healthcare attorney’s review of a provider’s service agreement with an HMO can uncover subtle provisions that may serve to significantly strengthen the provider’s bargaining position in the fight against the suffocating rate cuts. Review of facts by an expert is simply necessary to receive essential proper guidance with respect to your position vis-a-vis a managed care plan.

If you are a physician or a group practice facing a tough cut, call MDRXLAW for a consultation with one of our expert healthcare attorneys specializing in defense and representation of physicians and other healthcare providers in New York and New Jersey.

Kristina Giyaur, Esq. is a partner at the healthcare law firm of Sauchik & Giyaur, P.C.

Ms. Giyaur can be reached directly at 212.668.0200.
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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Medicaid and Medicare Wed, 06 Aug 2014 15:23:11 -0400
Urgent Care Telemedicine Practice Guidelines http://mdrxlaw.com/publications/urgent-care-telemedicine-practice-guidelines http://mdrxlaw.com/publications/urgent-care-telemedicine-practice-guidelines Practice Guidelines for Real-time, Direct-to-Patient Primary Urgent Care Telemedicine. These guidelines cover the provision of direct-to-patient, primary and urgent care services delivered by providers using real-time, two-way videoconferencing and telephonic technologies.

Telemedicine and urgent care go hand in hand as both are primarily focused on treating injuries or illnesses in need of immediate care, but not serious enough to require an emergency room visit. With the development of telemedicine, urgent care clinics are prone for growth. The patient pool an urgent care center can treat can be expanded statewide, or potentially nationwide, rather than including only those who live within a 3- to 5-mile radius. Moreover, providers will be able to treat more patients in a day with less administrative overhead. Clinics can also provide telemedicine-based follow-up visits, a current rarity, that creates stronger relationships with patients and increases repeat business.

Although the ATA Guidelines are extremely helpful, there are still a number of important legal considerations an urgent care clinic must make before implementing an e-practice. The laws governing telemedicine vary from state to state and providers will need to comply with both the laws from the state where they are located as well as the laws of the state in which the patient is in. Accordingly, countless laws and regulations are involved, forcing providers to entirely reassess their compliance policies and procedures. Everything from displaying a license to obtaining informed consent is affected when conducting an e-visit. Thus, providers should always seek counsel from a knowledgeable healthcare attorney before attempting telemedicine.
IMPORTANT LEGAL CONSIDERATIONS FOR NEW YORK URGENT CARE CLINICS:

Medical   Malpractice Insurance – Not all malpractice insurance currently covers   telemedicine. Providers should ensure that telemedicine is covered under their medical malpractice insurance policy or purchase a separate policy that specifically covers such visits. 

Reimbursement – Some private insurance reimburse for telemedicine services. Medicare and Medicaid severely limit reimbursement but currently pending before the New York Senate is a bill that will require private insurers and Medicaid to provide coverage for even more telemedicine services, further expanding e-healthcare. 

E-Prescribing– New York requires either a pre-existing physician-patient relationship or an in-person   “touch” physical examination before prescribing of medication. However, at least 12 other states allow the prescribing of medication when the physical examination took place entirely electronically.

HIPAA – Obviously   there are a number of concerns over providers’ ability to safeguard protected health information as required under Health Insurance Portability and Accountability Act when conducting an e-visit. However, it is certainly possible. Urgent care clinic’s need to ensure that the technology they utilize is secure and their HIPAA compliance policies are up to date.;

If you are planning on implementing an e-practice, whether originating in New York or another state, do not hesitate to call our firm and speak with one of our experienced healthcare attorneys. We have the comprehensive knowledge to ensure your interests are effectively protected while your practice grows!  Please do not hesitate to contact our firm for a consultation with one of our knowledgeable healthcare attorneys by phone at 212-668-0200 or via email at info [AT] mdrxlaw [DOT] com.
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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Compliance Wed, 06 Aug 2014 15:17:37 -0400
Whistleblowing Pharmacist NOT an Employee? http://mdrxlaw.com/publications/whistleblowing-pharmacist-not-an-employee http://mdrxlaw.com/publications/whistleblowing-pharmacist-not-an-employee In a decision of interest to healthcare industry employers and whistleblowers, the Supreme Court of the State of New York further limited the class of employees protected by New York Labor Law § 741 (“§741”), commonly known as the “Health Care Whistleblower Law.”  

In Von Maack v. Wyckoff Heights Medical Center, 504150/13, a hospital staff pharmacist alleged that her employer, a hospital, revengefully terminated her for reporting unsafe conditions in the hospital’s pharmacy to the federal Occupational Safety and Health Administration (“OSHA”). The hospital, on the other hand, contended that Von Maack was terminated for her uncooperative behavior. Prior to this suit, an arbitrator found that Von Maack was terminated for “just cause,” however, Von Maack, represented by her 1199 SEIU union counsel, never conveyed her whistleblower defense.

The grounds for dismissal by the Supreme Court of the State of New York were as follows: 1) a pharmacist, is not an “employee” for purposes of the health care whistleblower law because pharmacists do not perform “health care services;” 2) the doctrine of collateral estoppel, whereby litigants are prohibited from re-raising previously decided issues, bars the claim; and 3) the complaint didn’t identify exactly which law, rule or regulation the hospital violated, thereby endangering the health or safety of the public or a specific patient.

The court’s strange decision to limit the definition of “employee” under §741 will likely be the most controversial aspect of its judgment. According to the court, pharmacists, do not make judgments as to the quality of patient care, and as such, are not entitled to the “exceptional and specialized whistleblower protection.” Thus, relying on past precedent, the court held that pharmacists do not perform “health care services” under §741.

Further, this case shows the importance of choosing arguments to bring forth in arbitration. Litigants must always present all of their arguments in arbitration or else risk having the argument not heard. Here, the court held that, although it might appear that the arbitrator decided an independent issue, the doctrine barred the claim because the underlying issue was the same, whether Von Maack was justly terminated. Von Maack should have raised her whistleblower retaliation argument during the arbitration hearing. To avoid similar mishaps, healthcare employees should ensure that their counsel understands the intricacies of argument preclusion and collateral estoppel, especially union employees facing arbitration.

Additionally, the decision illustrates the importance of pleading all required elements properly. Von Maack, relying on a pharmacy regulation, didn’t point to the specific section within the regulation the hospital violated. Likewise, her complaint stated that the danger may potentially threaten the health or safety of the public or a specific patient, rather than pointing to a specific instance where the health or safety of a patient was in jeopardy. 

Clearly, the importance of proper pleadings and understanding the procedural intricacies of whistleblower retaliation claims cannot be emphasized enough. Healthcare industry employers and employees preparing for a §741 claim should always seek counsel familiar with, not just labor law, but healthcare law, whistleblower laws, and litigation and arbitration procedures.




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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Alerts Wed, 06 Aug 2014 15:02:41 -0400
OIG Issues Report on 340B Contract Pharmacy Arrangements: Finds Need for Further Regulation http://mdrxlaw.com/publications/oig-issues-report-on-340b-contract-pharmacy-arrangements-finds-need-for-further-regulation http://mdrxlaw.com/publications/oig-issues-report-on-340b-contract-pharmacy-arrangements-finds-need-for-further-regulation
Instructive regulations are set to be open for public comment this summer and published thereafter. Until then, 340B entities will have to rely on their pharmacy regulatory attorneys’ judgment to ensure compliance with all federal and state regulations. Failure to properly implement the 340B Drug Discount Program can lead to significant financial and criminal liability. Accordingly, retaining an experienced pharmacy attorney to provide expert guidance on 340B contract pharmacy arrangements is essential to avoid violations.

The experienced and dedicated pharmacy attorneys of our Health Care Team are here to address all your questions and concerns with respect to the 340B Drug Discount Program or any other legal issues. We can be reached by email at info [AT] mdrxlaw [DOT] com or by phone at 212-668-0200. For more information on our attorneys and areas of practice please visit our website at www.MDRXLAW.com.
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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Compliance Wed, 06 Aug 2014 14:55:13 -0400
Kristina Giyaur and Alec Sauchik - Super Lawyers Rising Stars 2014! http://mdrxlaw.com/publications/kristina-giyaur-and-alec-sauchik-are-selected-to-superlawyers-new-york-rising-stars-in-healthcare-law http://mdrxlaw.com/publications/kristina-giyaur-and-alec-sauchik-are-selected-to-superlawyers-new-york-rising-stars-in-healthcare-law We are pleased to announce that Kristina Giyaur, Esq. and Alec Sauchik, Esq. were recently selected as 2014 Super Lawyers New York Rising Stars in healthcare law. Less than 2.5 percent of New York attorneys receive this honor. These selections for this esteemed list are made by the research team at Super Lawyers, which is a service of the Thomson Reuters, Legal division. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, and a good-standing and disciplinary check.
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asauchik [AT] kspclaw [DOT] com (Alec Sauchik) Alerts Tue, 29 Jul 2014 11:18:14 -0400
Joining a Private Practice: What Every Prospective Partner Needs to Consider http://mdrxlaw.com/publications/joining-a-private-practice-what-every-prospective-partner-needs-to-consider http://mdrxlaw.com/publications/joining-a-private-practice-what-every-prospective-partner-needs-to-consider If you are a physician on partnership track or received an offer to become a partner at a private practice you need to consider a number of important factors. Forming or joining a partnership is a major life decision, one that should never be entered into without proper guidance from an experienced healthcare attorney. Partnership considerations, crucial for forming a lucrative partnership, are greatly dependent on the circumstances surrounding each practice. Accordingly, we strongly recommend that potential partners hire an exprienced healthcare attorney with in-depth knowledge of, not only commercial transactions, but the business of a medical practice as well.

Some of the partnership considerations a healthcare attorney must analyze include:

1.      Underlying economics of the practice, its assets, liabilities, risks and prospects.

2.      Financial structure of the practice, ownership rights, and governance documents, as well as, all documents, agreements, and contracts relating to the practice, including payor agreements, hospital agreements, property leases and subleases, equipment leases, management, employment, and other service agreements.

3.      The representations and warranties contained in the Purchase & Sale and/or Buy-Out Agreement and their implications.

4.      Compensation, buy-ins, buy-outs, restrictive covenants, and exit strategies including agreements regarding compensation upon dissolution of the partnership and/or death of a partner. Note that if the practice compensates owners based on their respective production, a healthcare attorney must review the initial structuring and ongoing execution of the arrangement to ensure it complies with the Stark Law, the Anti-Kickback Statute, applicable state laws, Medicare reimbursement regulations, and the Internal Revenue Service’s (IRS) unreasonable compensation regulations. 

Before committing to becoming an owner of a practice, prospective partners should have their healthcare attorney extensively review the agreements and issues involved in joining a practice to ensure a financially successful and generally rewarding partnership

If you have any questions or would like a consultation regarding this or any other healthcare legal issues please do not hesitate to call one of our experienced healthcare attorneys at 212.668.0200 or email us at info [AT] mdrxlaw [DOT] com. Our  healthcare partners have years of experience representing physicians in numerous transactions including practice buy-ins and buy-outs, partnership formations and dissolutions, practice mergers and acquisitions as well various types of contracting among healthcare providers. The attorneys at MDRXLAW are here to provide guidance and counsel on any of your healthcare legal matters.
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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Medical Practice Management Mon, 23 Jun 2014 20:17:09 -0400
CMS Must Provide a Proper Explanation When Denying a Claim http://mdrxlaw.com/publications/cms-must-provide-a-proper-explanation-when-denying-a-claim http://mdrxlaw.com/publications/cms-must-provide-a-proper-explanation-when-denying-a-claim One of healthcare providers' worst nightmares is a Medicare request for repayment as a result of an unfavorable overpayment determination or audit.  Frequently, such repayments are based on determinations using extrapolation from a smaller sample. Many claims are denied with nothing but a very general explanation.  Appeals of such determinations can be very cumbersome, and might involve detailed analysis of all claims and the use of statistics. 

Providers who receive unfavorable overpayment determinations have up to five levels of appeal available to them.  First, the provider may request a redetermination from the CMS claims processing contractor.  Second, the provider may appeal to a CMS Qualified Independent Contractor (QIC).  Third, the provider may appeal to a CMS Administrative Law Judge (ALJ).  Fourth, the provider may appeal to the Medicare Appeals Counsel (MAC).  Finally, the provider can request a judicial review in a federal district court.

For each level of appeal, Medicare is required to give the provider a specific rationale for denying its claims or determining that an overpayment was made.  An adequate, specific and detailed explanation for denial of a claim or a finding of an overpayment is an essential procedural component of the appellate process.  It provides the information to effectively dispute the determination and serves as evidence that a contractor properly conducted the review.  If CMS did not require its contractors to provide an explanation for denying a claim, then it would be able to circumvent the appellate process by systematically denying claims and then changing its rationale for denial upon hearing the provider’s defense.  If a determination decision does not include specific reasoning for denial of a claim, the appeals process fails to function properly and denies the healthcare provider a full and fair appeal. 

This same logic applies to overpayment calculations performed through extrapolation from a statistical sample.  Often, CMS or one of its contractors will audit a sample of patient medical records and extrapolate its findings to all claims submitted during the look-back period.  To adequately defend against such an extrapolation, a provider needs to be fully informed of the extrapolation methodology, particularly the sample used.  In The Case of Global Home Care Inc., the MAC declined to review the ALJ’s decision to not use the extrapolation conducted by CMS’s contractor. The ALJ found that because the contractor failed to produce its sampling documentation to the provider, the provider was unable to recreate the “statistically valid random sample,” thereby denying him a full and fair appeal.  Thus, providers are entitled to see the Medicare contractor’s extrapolation methodology documentation.

If you have been audited or an overpayment determination has been made against you do not hesitate to call our firm and speak with one of our experienced healthcare attorneys.  We will ensure that your rights are effectively protected!


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sspektor [AT] kspclaw [DOT] com (Simon Spektor) Medicaid and Medicare Sun, 23 Feb 2014 16:22:31 -0500
Avoid the PQRS Confusion http://mdrxlaw.com/publications/avoid-the-pqrs-confusion http://mdrxlaw.com/publications/avoid-the-pqrs-confusion CMS’s Physician Quality Reporting System (“PQRS”) is and should be of utmost importance to physicians and other eligible providers.  With proper guidance, the seemingly overwhelming new system of reporting requirements is quite manageable.  We address the PQRS issue due to the alarming fact that a vast majority of New York physicians have formed a misconception about the PQRS that may result in tangible reduction in the already-reduced Medicare reimbursement rates.

What is key for all physicians to realize is that PQRS is not simply a system of incentives, failure to comply with the new mandates will cause penalties in form of reimbursement adjustments on future claims. These penalties can and should be avoided simply by implementing a proper quality measures reporting system.

To participate in the 2014 PQRS, individual providers must report information on individual PQRS quality measures.  Which measures?  Providers get to select from 287 measures and 25 measures groups within National Quality Standard (NQS) domains such as:
  • Patient Safety,
  • Person and Caregiver-Centered Experience and Outcomes
  • Communication and Care Coordination,
  • Effective Clinical Care,
  • Community/Population Health, and
  • Efficiency and Cost Reduction
If properly implemented, a provider will receive a 0.5% increase to all of their Medicare Part B Fee-for-Service claims. The requirements vary depending on the practice’s size, specialty, and method of reporting.  On the other hand, providers who fail to properly implement the PQRS this year will be subject to a -2.0% payment adjustment on all of their 2016 claims.   

Physicians take note!  The PQRS will serve as the input source for CMS’s Value-Based Payment Modifier (“VBPM”) program.  The VBPM program will apply a value modifier to physicians’ claims under the Medicare Physician Fee Schedule (“MPFS”) based upon the quality of care furnished in relation to total costs.  Accordingly, what a physician reports under the PQRS this year, if anything, will determine how much money he gets two years from now.  Moreover, under the VBPM, physicians who don’t participate in the 2014 PQRS will be subject to an additional -2.0% payment adjustment on all of their MPFS claims.  Thus, physicians who fail to properly implement the PQRS this year will be subject to a 4% penalty plus a value based adjustment depending on the quality and efficiency of their care. 

In addition to determining differential pay, the PQRS provider performance information will be shared with the public online.  In 2015, CMS will begin publicly posting individual physician performance data using the information reported through the 2014 PQRS.

With incentives, significant financial penalties, reimbursement, and public profiles conditioned on properly implementing the PQRS this year, providers have run out of time to procrastinate.  It is important that physicians take the time now to analyze their practices, work flow and PQRS implementation. The experienced health care attorneys of our Health Care Team  are here to address all your questions and concerns with respect to the issue of PQRS or any other legal issues. We can be reached by email at info [AT] mdrxlaw [DOT] com or by phone at 212.634-6350 or 718.787.9500.

 


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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Alerts Tue, 11 Feb 2014 19:14:41 -0500
FTC Fining Medical Practitioners for Data Breaches http://mdrxlaw.com/publications/ftc-fining-medical-practitioners-for-data-breaches http://mdrxlaw.com/publications/ftc-fining-medical-practitioners-for-data-breaches As though the administration of a medical practice or a pharmacy establishment has not become a smothering task as things stand now, governmental scrutiny intensifies yet again!  Last week, the Federal Trade Commission (FTC) issued a unanimous ruling extending its authority over HIPAA covered entities, a significant shift from its historic role of protecting consumers and monitoring unfair business practices.  Physicians and other healthcare providers are now exposed to not only HIPAA enforcement actions, but also FTC fines and penalties in the event of a data breach. 

With this recent legislative developments , healthcare practitioners need to be extra vigilant in their HIPAA compliance policies and data protection.  To avoid exposure, every practice is strongly encouraged to implement a comprehensive compliance program in line with the applicable state and federal regulations.

Please contact our experienced healthcare attorneys with any questions pertaining to implementation of a comprehensive compliance plan, for general regulatory and compliance guidance and, immediately, in the event of an audit or an investigation by any state or federal agency.
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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Alerts Mon, 10 Feb 2014 23:37:14 -0500
Documents Collection http://mdrxlaw.com/publications/documents-collection http://mdrxlaw.com/publications/documents-collection We are pleased to bring you a variety of documents relevant to your practice.  Please visit the document archive.  We are constantly updating this section so visit often.
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asauchik [AT] kspclaw [DOT] com (Alec Sauchik) Alerts Mon, 10 Feb 2014 11:41:15 -0500
New York Physicians Compliance Program Federal Mandate http://mdrxlaw.com/publications/new-york-physicians-compliance-program-federal-mandate-1 http://mdrxlaw.com/publications/new-york-physicians-compliance-program-federal-mandate-1 The New York State Office of Medicaid Inspector General (“OMIG”) has long required Medicaid providers to implement compliance programs as a condition of enrollment with Medicaid. However, now under Federal law, practitioners, regardless of the size of their practice, will have to develop a comprehensive compliance program. Under Section 6401 of the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”), all healthcare providers enrolled in a federal healthcare program, must implement an effective compliance program. The Department of Health and Human Services (HHS) and its Office of Inspector General (OIG) have consistently cited the following components in guidance materials as the basic elements for inclusion in compliance programs for health care providers:

Implement Written Policies, Procedures, and Standards of Conduct: Practices must maintain documentation that clearly and specifically outlines the policies and procedures for ensuring such compliance. This often includes a comprehensive “Compliance Plan” and separate written policies and procedures. The Compliance Plan should describe compliance expectations as embodied in a code of conduct or code of ethics, implement the operation of the compliance program, provide guidance to employees and others on dealing with potential compliance issues, and identify how to communicate compliance issues to appropriate compliance personnel. A basic outline of an effective compliance program will consist of:
  1. Compliance Officer/Committee Designation and High Level Oversight
  2. Effective Training and Education
  3. Effective Lines of Communication & Whistleblower Protections
  4. Effective System for Monitoring, Auditing and Identification of Compliance Risks
  5. Procedures and System for Prompt Response to Compliance Issues
  6. Well-Publicized Disciplinary Standards
With enforcement initiatives against healthcare providers ever-increasing, physician and practices which have not implemented comprehensive compliance plans, specifically meeting necessary criteria, risk exclusion from government healthcare programs. Additionally, effective compliance programs enable providers to avoid or mitigate the significant penalties associated with violations of existing health care regulations.

For example, a physician who unknowingly violates the PPACA, such as the recent Stark Law amendment requiring physicians to inform patients in writing that they have ownership or compensation relationships with providers of in-office ancillary services, could be subject to penalties of up to $15,000 for each service in violation of the Stark Law. Moreover, violations of the Anti-Kickback Statute now implicate the False Claims Act. Thus a simple gift from a physician to a referrer can subject the physician to monetary penalties of up to $25,000 and/or imprisonment of up to 5 years, as well as a penalty of $11,000 per false claim submitted, plus three times the amount of damages sustained by the federal government.

Physicians and medical practices are strongly urged to obtain proper legal guidance in this time of high regulatory turbulence in the healthcare arena and ever-increasing complexity of the administrative aspects of the practice of medicine. For answers to all of your compliance related questions, as well as with audit resolution assistance, regulatory counsel, liability avoidance guidance or when in need of an expert professional licensure defense attorney please feel free to contact the healthcare group of our firm at info [AT] mdrxlaw [DOT] com or by phone at 212.634.6350 or 718.787.9500. For more information on our practice areas and the backgrounds of our experienced attorneys please visit our website www.mdrxlaw.com, a place where healthcare practitioners find answers to their legal questions.

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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Alerts Wed, 29 Jan 2014 12:53:43 -0500
Using Chaperones to Deter & Defend Against Sexual Misconduct Complaints http://mdrxlaw.com/publications/using-chaperones-to-deter-defend-against-sexual-misconduct-complaints http://mdrxlaw.com/publications/using-chaperones-to-deter-defend-against-sexual-misconduct-complaints One of the worst accusations a physician or any healthcare professional can face is a sexual misconduct complaint.  If a physician is contacted by the Office of Professional Medical Conduct (“OPMC”) they should immediately seek legal counsel and avoid engaging in any communications with the investigators prior to securing legal representation. OPMC takes sexual misconduct complaints very seriously and thoroughly investigates even unsupported and plainly baseless accusations.   If you or a physician you know is faced with allegations of sexual misconduct or a complaint has been filed by a patient alleging an incident involving inappropriate sexual conduct our team of experienced health care attorneys are here to answer all your questions and defend you in the event that proceedings are in fact initiated by the Office of Professional Medical Conduct. 

Unfortunately, the accused physician not only faces losing his or her license and even potential filing of criminal charges, but, given the current flawed disciplinary system is likely to suffer harm even if he or she is ultimately exonerated.  The mere filing of a complaint and initiation of any investigation by OPMC brings about not only significant defense expenses, but can actually cause irreparable damage to the provider’s name and reputation leading to loss of patients and referral sources.  Moreover, the innocent physician will forever be required to explain the exonerated accusation to employers, credentialing committees, managed care companies and other entities.       

Given the harsh reality of a false sexual misconduct accusation, physicians and physician assistants, need to implement extensive procedures to deter such accusations; such as properly utilizing a chaperone.  Although, many physicians already use chaperones, most have not updated their procedures to the changing demands of modern times.  Since complaints can now be of a homosexual or transsexual nature, physicians should use chaperones regardless of the patient’s gender or sexual orientation.  Moreover, sexual misconduct is no longer defined exclusively as an act of sexual assault.  Rather, OPMC proceedings as well as criminal investigations may now be based on a wide range of allegations from physical and verbal sexual harassment, suggestive comments, inappropriate comments, and even leering.  

When using a chaperone, the practitioner should ensure that the chaperone’s presence is recorded in the medical record.  By simply recording the chaperone’s initials in the medical record, the medical record could one day serve as essential evidence to refute an allegation.  Additionally, given the chance of the chaperone leaving the practice for employment elsewhere, the medical office should secure extensive contact information so that the chaperone could be reached to corroborate the accused physician’s testimony even if he is no longer employed with the office.  

A chaperone should also remain present during the entire time that the physician interacts with a disrobed or even partially disrobed patient.  If a patient objects to the chaperone, then the physician should not proceed with the examination, unless they can accommodate the patient’s request.  Thorough documentation of the full course of events should be detailed in the patient’s record to further evidence the interaction.

Although utilizing a chaperone does not guarantee prevention of false accusations, it certainly deters sinister patients from bringing forth frivolous claims.  It also serves as good evidence to disprove any accusations, thereby protecting the physician from suffering devastating consequences.  The minimal investment of properly utilizing a chaperone is well worth the decreased risk of harm and should be standard protocol for every medical practice.   

 

 


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kgiyaur [AT] mdrxlaw [DOT] com (Kristina Giyaur) Medical Practice Management Tue, 28 Jan 2014 09:34:03 -0500