At Phillips Lytle, we practice law for those who practice health care, and we understand that health care providers face unique legal challenges. Our Health Law Practice is necessarily broad-based because our clients represent virtually every segment of today’s health care marketplace. The way we receive and pay for health care is rapidly changing, but Phillips Lytle’s ability to provide guidance in this constantly changing area remains steady. We have more than 25 years of health law experience. While this doesn’t mean we think we’ve seen it all, it does mean we know where health care has been and have a sense of where it’s going.
Our clients include physicians and physician group practices, hospitals and health systems, clinics, long-term care facilities, continuing care retirement communities, home health care service providers, ambulatory care facilities, health care payors, pharmaceutical manufacturers and distributors, mental health facilities, and numerous not-for-profit human services organizations including drug and alcohol treatment providers.
PPACA, STARK, HITECH, HIPAA, OMIG and MFCU aren’t just buzzwords for us – they represent real challenges that we’ve helped our clients meet.
Our interdisciplinary practice allows for coverage of all aspects of our health care clients’ operations, from regulatory and compliance issues to corporate transactional and tax issues. We have the rich resources of a large firm purposefully structured to handle the recurring issues every business or institution faces, and the particular expertise to handle the issues unique to the business of providing health care.
Our attorneys are highly involved in numerous professional organizations, including the American Health Lawyers Association, Catholic Healthcare Association, American Association of Homes for the Aging, Health Care Compliance Association, and various health law committees of the American, New York State and Erie County Bar Associations. Our attorneys are also active with several health care foundations and are members of the boards of many health-related facilities. We both teach and attend continuing education programs.
Our Health Law Practice includes expertise in the following areas:
- Health care reform obligations and opportunities
- Compliance counseling
- Health care fraud and false claims litigation
- Health care litigation
- Contract issues
- Business organization and capitalization issues
- Business operations
- HIPAA and medical record privacy
- Hospital operating issues
The Patient Protection and Affordable Care Act (“PPACA”) of 2010 and the regulations to be enacted pursuant to PPACA will have a significant impact on how the American health care system will operate in the 21st century. Phillips Lytle’s health care attorneys are prepared to assist our clients with complying with the new requirements of PPACA, as well as help them take advantage of the provisions of PPACA that offer health care providers financial incentives to improve quality and reduce cost.
Medicare-Medicaid Antifraud and Abuse laws differ significantly from laws generally applicable to other businesses. For example, providers are generally prohibited from giving or receiving remuneration in return for referring patients for Medicare-Medicaid-covered services, or from purchasing or recommending the purchase of Medicare-Medicaid-covered goods or services. These laws and the associated exemptions and safe harbor regulations have an impact upon a wide variety of business activities, including joint ventures with other health care providers and physicians contracting and recruiting. With increased cost consciousness and price competition in the health care area, providers will, more and more, be entering into arrangements and undertaking activities that implicate federal and state antifraud and abuse laws. We perform the careful analysis of whether contemplated activities and arrangements violate these laws, and advise clients of the impact of these laws on various activities including joint ventures, exclusive contracts and recruitment arrangements. We help our clients structure arrangements and activities to comply with the law and to conduct internal investigations and audits to ensure that compliance remains a priority.
We assist clients in interpreting health care regulations, determining their effects on current or proposed activities, working out strategies for compliance and dealing with health care regulators. We represent clients in investigations by various government entities including:
- United States Department of Justice
- United States Department of Health and Human Services
- Office of the Inspector General
- Office of the New York State Medicaid Inspector General
- Medicaid Fraud Control Unit in the New York State Attorney General’s Office
- New York State Department of Health, Food and Drug Administration
- Office of Professional Medical Conduct
We also assist clients with effective self-disclosures at the state and federal levels, and offer advice and training on steps to take upon receipt of a regulatory inquiry.
Our firm also offers clients a unique skill set in that we have experience in representing both whistleblowers (plaintiffs) and defendants in False Claims Act litigation. From this unique perspective, we are able to provide our clients effective counsel and sound experience.
Whether Medicare, Medicaid or private insurance, numerous legal issues arise in the complex and continually evolving area of third-party reimbursement. We advise clients concerning the interpretation of various reimbursement laws, regulations and contracts. We also represent clients on appeals of intermediary and administrative decisions that impact their reimbursement including ratemaking issues.
We offer training to hospital and nursing home staff about the basics of Medicaid and Medicare regulations. This training provides clients with the in-house capability of detecting reimbursement problems quickly, before large arrears accrue. We can also assist with the application process and with pursuing benefits when Medicaid eligibility is contested. Administrative hearings, state and federal court proceedings, collection activities and guardianships have all been successfully employed to assist our health care clients in obtaining appropriate reimbursement.
Complex and challenging health care issues often lead to litigation between competing providers or between providers and payors. Phillips Lytle’s Health Law attorneys identify key issues and provide vigorous advocacy before courts and administrative tribunals. Our attorneys represent various providers in contract disputes, reimbursement challenges, false claims or other fraud and abuse allegations, and licensure and credentialing disputes.
In addition to defending health care providers in actions brought by regulators such as the United States Department of Justice, the Medicaid Fraud Control Unit and the New York State Department of Health, we also commence litigation to vindicate our clients’ rights when such agencies take administrative actions adverse to our clients’ interests.
National and local plaintiffs’ attorneys are more aggressively targeting extended-care facilities and home health providers in suits alleging negligence. These cases require careful analysis and meticulous preparation to properly defend. Our clients have an advantage because Phillips Lytle can combine our firm’s extensive knowledge of health law with our considerable litigation experience and resources, resulting in a defense that is prepared for any challenge.
We assist physicians in a number of areas including privilege disputes, Office of Professional Misconduct (“OPMC”) proceedings, practice dissolution issues and contract disputes.
A hospital patient who issues no advance directives, and loses the capacity to make health care decisions, often leaves the health care provider in a legal quandary. We have represented health care providers and individuals forced to make decisions with unclear or no advance directives, and we have represented our clients in connection with issues arising from health care proxy challenges. We are experienced in handling difficult and highly personal matters like these with both speed and sensitivity.
We represent mental health providers in proceedings concerning treating and retaining patients contrary to patients’ wishes. We also represent providers in guardianship proceedings in New York State Supreme Court to ensure that the interests of patients who appear to lack capacity to make certain decisions are properly represented.
We assist health care providers with negotiating and preparing contracts that both meet the client’s organization or business goals, and comply with the various regulatory requirements imposed by state and federal law.
Providers recognize that attention to controlling costs is just one component of success. Providers increasingly must gain access to additional revenue streams. We work with physician groups, hospitals, nursing homes and their investors and lenders to accomplish consolidations, mergers, acquisitions and divestitures, corporate restructurings, affiliations and financings.
In response to the financial dilemmas brought on by heightened cost consciousness and rapidly escalating expenses, many health care institutions have reorganized to provide a more efficient corporate structure for handling the business aspects of providing health care. Corporate restructuring and reorganization can provide the flexibility to adapt to the rapidly changing environment of the health care industry. Because of the diverse experience within our firm, we can assist our clients in selecting and establishing the new organizational structure best suited to the particular entity’s needs. We can also provide ongoing advice with regard to that structure.
Heightened competition in the capital markets and changes in the health care industry have resulted in creative debt and equity financing strategies. Phillips Lytle’s Banking & Financial Services, Real Estate and Tax-Exempt Financing attorneys have extensive experience in a wide variety of financing methods. We represent lenders, nursing homes, hospitals and continuing care communities in the structuring, negotiation and closing of numerous types of financings such as tax-exempt leasing and tax-exempt bonds. We also represent clients in connection with conventional working capital, term loan and mortgage loan facilities, and equipment leasing transactions.
At Phillips Lytle, we have extensive experience dealing with the Dormitory Authority of the State of New York and industrial development agencies in connection with tax-exempt financing. Because of the breadth of our attorneys’ knowledge and experience, we can anticipate many of the real estate, health care, corporate, tax and other issues that may arise. Therefore, we can assist individuals and entities in keeping projects on track. We can also assist health care providers with the completion of tax and other due diligence questionnaires, in the preparation and review of the description of the health care provider in the relevant offering documents, and in establishing compliance procedures after the closing of transactions.
Labor is both the largest variable cost and the most complex management issue facing many providers. Among the most important legal issues are permissible criteria for staff appointments, denial of access as a result of exclusive contracts, “closed shop” arrangements, exclusion of non-physician professionals, revocation of physicians’ privileges, and antitrust challenges to staff exclusion decisions. Our Health Law Practice provides the legal advice necessary to deal with, or prevent, problems in the area of medical staff relationships. We represent physician groups and individual physicians in a variety of areas, including practice start-ups, joint ventures, setting up professional corporations, LLPs, IPAs, purchase and sale of practices, real estate and other investments, labor and employment, employee benefits, tax planning, and general contract and business concerns.
With increasing frequency, health care providers are joining with regional or national health care systems and networks to obtain a variety of operational benefits, such as group purchasing discounts and self-insurance funds. Legal concerns arise with respect to both the nature and form of initial affiliation and ongoing membership or other contractual concerns. We assist clients at all stages of affiliation with these systems, often in conjunction with corporate restructurings as discussed previously.
Broadly speaking, the federal and state antitrust laws are designed to promote free competition and to remedy the abuses associated with the improper aggregation of market power. Antitrust issues generally arise when a single entity in a particular market or geographic market employs improper methods to acquire market power, or when two or more entities combine or conspire to do so. As antitrust laws have been increasingly applied to various activities of health care providers, antitrust liability has become a major concern for the health care industry.
As competition in the health care market increases, the need for providers to review their activities with an eye on antitrust concerns also increases. Recent court cases have involved the application of antitrust laws to the areas of staff privileges, relations among rival providers, third-party payors, exclusive hospital-based practice contracts, purchasing arrangements, joint ventures, mergers and acquisitions, managed care contracting and network formation. Existing and proposed activities in these areas present the potential to identify and address liability under the antitrust laws. We provide our clients with careful analysis and evaluation of antitrust requirements.
Even though the majority of our health care provider clients are exempt from federal income tax, our tax personnel can help providers obtain initial charitable qualification and maintain such status once recognized, as well as obtain a state sales tax exemption. Additionally, we can advise providers on various tax-related issues such as private inurement, executive compensation, unrelated business income, fund-raising guidelines and documentation, the distinctions between permissible limitations on lobbying, and legislative matters versus the absolute prohibitions relating to participation in partisan political activities.
Even before HIPAA, New York State required that protected health information be given confidential treatment, and Phillips Lytle was providing guidance to clients regarding the disclosure of medical records. HIPAA has added numerous requirements that covered entities must meet. In addition, breach of privacy lawsuits are proliferating, sometimes resulting in press coverage more damaging than a jury verdict. Covered entities need to know the rules concerning the release of medical information. We now answer questions from providers almost daily about whether a proposed release of confidential health information is appropriate. We provide clients with comprehensive policies and procedures tailored to their unique operations, helping them to ensure that the medical information they obtain is properly protected.
We assist hospitals by ensuring compliance with The Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), commonly known as the Patient Anti-Dumping Act. In addition to assisting our clients with EMTALA compliance, we assist our clients with conducting investigations of complaints and defending enforcement actions.
A hospital’s duties and responsibilities with respect to granting, suspending and terminating physician privileges require careful compliance with established procedures to ensure fairness to physicians and the safe and effective delivery of care to patients. Our attorneys assist hospitals with compliance and operational issues that arise concerning privileging standards and procedures. We also represent hospitals in administrative hearings and court proceedings concerning disputed privileging determinations.
New York State requires the demonstration of community need through a Certificate of Need (CON) process as a prerequisite to establishing, constructing or renovating health care facilities such as hospitals, nursing homes, home care agencies, and diagnostic and treatment centers. These health care facilities also must follow the CON process for acquisitions of major medical equipment. Phillips Lytle’s attorneys assist health care facilities with obtaining CON and other governmental approvals, including local zoning and planning board approvals in connection with major establishment, renovation, construction and acquisition projects.