by Jeff Sansweet | Oct 19, 2015 | Contracts
Most physicians in group practice understand the need to have their internal practice economic and governance-related arrangements documented in writing. If no agreements are in place, a junior physician could leave with no notice without a restrictive covenant and take a lot of patients with him or her. A senior physician, without the proper agreements, could retire or die with no entitlement to a buy-out. Even if certain documents do exist, they may be old and outdated in light of the current legal and economic environment. Thus, it is very important to examine your practice inter-doctor documents periodically, perhaps every two or three years or so, to see if any changes are warranted. Partnership Agreements The form of the documents will vary depending upon the type of entity. If the practice is a professional corporation, the documents typically include Employment Agreements for the shareholders, a Buy-Sell or Shareholders’ Agreement and Bylaws. If the practice is a partnership, there would be a Partnership Agreement. If the practice is a limited liability company, an Operating Agreement would be the governing document. The most obvious and important issue that needs to be looked at in light of the difficult healthcare environment is the buy-out. If the buy-out is a set dollar amount that was agreed to in better days, it should be reduced to a more realistic value today. If the buy-out is expressed as a percentage of the gross receipts for a period prior to termination (e.g., an annual average over the prior three calendar years), the percentage may be too high since the overhead is almost certainly higher than in...
by Michael Burke | Oct 19, 2015 | Health Law
The 2016 Medicare Physician Fee Schedule (“MPFS”) published on July 15, 2015 contains several proposals related to the Stark self-referral regulations. Certain of these proposals are designed to ease technical burdens that have caused many self-disclosures to the government as a result of technical violations of Stark. Other proposals relate to the Centers for Medicare & Medicaid Services (“CMS”) suggesting the addition of new exceptions for the recruitment of non-physician practitioners and for timeshare arrangements (which ultimately may be more confusing than clarifying). This article will examine the key proposals contained in the proposed 2016 MPFS as they relate to Stark. Centers for Medicare & Medicaid Services Under the current Stark Regulations, parties have thirty (30) days from the commencement date to sign an agreement if parties know that the agreement is unsigned and ninety (90) days to sign an agreement if the parties are unaware that the agreement is unsigned. Under the proposed regulation, all signatures could be obtained within ninety (90) days of the commencement date of the agreement so long as all the requirements of the exception (other than the signature requirement) were satisfied. CMS proposes to clarify that where a Stark exception requires a one-year term, this requirement could be satisfied if the agreement does not specify a one-year term and the arrangement actually lasts for at least one (1) year or the parties terminate the arrangement during the first year and then do not enter into a similar arrangement that was the subject of the agreement for the remainder of the first year. While Stark does not change the requirement found in certain exceptions...
by David R. Dearden | Oct 19, 2015 | Health Law
A subpoena is a type of legal order that commands either the production of documents to be used in a court proceeding or the presence of a witness for a deposition or trial. Most of our clients routinely receive civil subpoenas requesting the production of medical treatment records which are gathered for medical malpractice and personal injury lawsuits. Of greater concern are subpoenas issued by governmental authorities, including the State Board of Medicine, the Pennsylvania Attorney General, and the U.S. Attorney’s Office. All subpoenas should be handled with due diligence. Secure and Prevent the Changing of Records It is important for a healthcare practice to have a routine for handling the receipt of subpoenas. Most providers have a formal document retention policy that provides for the maintenance, storage and orderly destruction of documents. It is critical to identify those records that are potentially subject to a subpoena and prevent such records from being destroyed. An appropriate representative of the practice should take possession of records that have been subpoenaed so that they will not be altered or destroyed and secure them for safekeeping. Calendar Response Date The provider should maintain a log that records the date and time when the subpoena was received and the date a response is due. An evaluation should take place to determine whether or not the subpoena can be handled in a routine fashion or there is a need to seek the assistance of legal counsel. Any criminal or governmental investigatory subpoena should be referred to experienced counsel. It is helpful for the provider to acknowledge to the issuer of the subpoena that it...
