Jeffrey L. Cohen

Board Certified as a Specialist in Health Law

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“I created this Firm because I wanted to make a difference. I don’t settle for anything less than clients who are raving fans who know we care about them and will do whatever it takes to deliver real value every time.”

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Followers of the addiction treatment industry should be on high alert after the arrest of Christopher Hutson of Whole Life Recovery.  The arrest marks the first arrest of any industry provider utilizing the state Patient Brokering Act (PBA).  Relying solely on the allegations, the arrest is based on a business relationship between the provider and sober homes.  Discussion in the “case management agreement” referred to in the arrest affidavit circles around some key allegations that include or imply (1) payment for patient referral, and (2) services by sober homes paid for by Whole Life which were not actually performed. Read on

Healthcare professionals and businesses are routinely barraged with people who claim to be able to generate business for them.  The business of healthcare is like none other in its abhorrence of anything that even smells like payment for patient referrals, so professionals and businesses alike have to be extremely cautious and well advised in crafting marketing and related business-enhancing relationships.

The key here is to realize that, while the laws haven’t changed, what regulators are doing with them has!  The environment of healthcare marketing has never been more treacherous than it is today.  So what’s changed?  How about:

Read on

The DOJ reported on August 5th a settlement with a South Carolina hospital concerning physician compensation.  Though certainly not the first or the biggest case of its kind (e.g. note the Halifax Hospital and North Broward Hospital District cases, which generated settlements of over $100M and $60M respectively), it’s attention grabbing nonetheless.

The SC case was brought by a whistleblower, a neurologist formerly employed by the hospital.  The doctor alleged that the seven year employment agreements violated Stark and the Anti Kickback Statute because the compensation was more than what was legally permissible and was also based in part on ancillary services ordered by the employed doctors.  Seasoned readers will understand that the concept of “fair market value” (FMV) is at the heart of regulatory compliance and also that compensation surveys of organizations like the Medical Group Management Association (MGMA) are important guides in term of what is/is not FMV.  In the SC hospital case, compensation met or exceeded the top 10% of similarly qualified physicians in the area, which is very interestingly noted by the DOJ (because some of the comp levels were still within the MGMA surveys).  In other words, the trend here is for the Feds to push back against comp levels on the high end of the FMV spectrum.

Read on

Vascular access centers are a common ancillary service offered by a variety of physicians, mostly nephrologists.  They provide a unique setting for patients requiring interventional vascular services in connection with things like oncology, dialysis, nutritional delivery, wound healing, pain management and more.  Unlike many surgical services, however, they are typically not provided via a surgery center, but rather as part of (and inside) the physician’s practices.

Establishing VACs in Florida typically involves compliance with corporate laws, “in office surgery” regulations and applicable self referral laws.  Since VAC reimbursement is generally better in an office setting than an ASC setting, they are normally established as a “physician practice.”  bringing in non-physician owners (such as large dialysis providers) will trigger the need to obtain health care clinic licensure (HCCL).  Moreover, structuring the ownership will typically involve formation of a limited liability company with either (1) multiple physician owners, or (2) a physician ownership group, plus a corporate owner/manager.  Control and restrictive covenant issues are particularly important, especially when a corporate “partner” is involved.  Normally, when the corporate partner invests a substantial amount of money, the physician owners give up a certain degree or leverage and income (e.g. via a management contract with the corporate partner).

Read on

FHLF Attorney Jeff Cohen was interviewed for a recent article by Brigitte Graf of the Ambulatory M&A Advisor

Non-disclosure agreements (NDAs) have become universally commonplace when dealing in transactions among Ambulatory Centers. These agreements, while designed to provide protection for all parties involved, can cover a wide range of sensitive topics, timetables and other areas of concern for potential buyers and sellers. With the expensive nature of the enforcement of NDAs,  a seller could be left wondering where to even begin with an NDA. Thankfully, the experts have shared advice and tips on how to best go about crafting and enforcing your NDA.

Recent Trends and Key Provisions

Health Care Attorney at Michelman & Robinson, LLP, Damaris Medina, says that NDAs have become more widely used and are now universally applicable to transactional negotiations.

“Sellers want to make sure buyers are not transmitting confidential information to competitors,” Medina said. “If the buyer is a competitor, the seller wants to have some confidence the competitor will not be using that information to put the seller at a disadvantage should the sale not go through.”

Jeffrey Cohen, founder of the Florida Healthcare Law Firm and  Florida Board Certified Healthcare Attorney, says that recent trends in NDAs would imply very few changes to how they are used and implemented compared to the past. Rather, the few changes noticeable are in the confidentiality provisions. These are submitted commonly in the form of Letters of Intent (LOIs).

Read on

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