Monthly Archives: January 2017

HIRING THE HEALTH CARE LAWYER

MAKE SURE YOUR NOT GETTING RIPPED-OFF BY THE BIG LAW FIRM

The Problem

All businesses need to be careful with hiring and paying attorneys. American Express at Open Forum reports on the different ways that law firms take advantage of clients. Some examples: Including charges for corporate, estate planning and real estate forms that they have used multiple times and billed to multiple clients.  Being shuffled off to less experienced attorneys and paying for the “supervision” by the senior attorney; and, refusing to negotiate the billable hour and replacing it with things like flat fees or other creative billing.

According to AMEX: “All attorneys should be open to negotiating their hourly rate, especially if you have a big project or will pay a cash retainer up front,” said Street. “Better yet, ask them to quote you a flat rate for your project. Most attorneys are still learning how to think about flat- or project-rate billing, so they may need your help in setting the fee, but you will then have complete control over the cost of your representation.”

Avoiding Excessive Legal Fees

All businesses, especially healthcare businesses, avoid the problems of hiring lawyers by creating a continuing relationship with a lawyer. Businesses of a certain level have the ability to hire in-house counsel, an important position in any organization. The General Counsel of a firm can protect it from many legal threats and can help the organization find appropriate legal support.

Smaller businesses can’t afford to hire General Counsel. Given the more and more complicated legal framework, owners of businesses must find appropriate avenues to obtain advice to avoid the harsh penalties of a legal mistake.

Healthcare Law and the General Counsel

Healthcare firms must make sure that they get accurate and specialized lawyering to support their business. One step is to follow the guidelines of AMEX when hiring a lawyer and make sure they are getting the right advice and paying the appropriate amount for the advice.  Negotiating and setting a set plan for the advice needed is the best alternative to the billable hour.

Healthcare Compliance

Healthcare firms face a wide range of regulatory compliance matters impacting the healthcare industry.

Kinley Law Practice works with businesses to create and implement safeguards to ensure that clients are in compliance with all applicable federal and state regulations. These safeguards not only minimize exposure to administrative fines, costly lawsuits and settlements, they also ensure maximum profits and efficiency.

KLP’s compliance capabilities include:

• Anti-kickback laws
• Stark Law matters
• Ethics and Patient Referral Act
• Emergency Medical Treatment and Active Labor Act (EMTALA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Health Information Technology for Economic and Clinical Health Act (HITECH)
• Loss of licensure issues
• Corporate Integrity Agreement negotiations with Health and Human Services
• Office of the Inspector General
• Clinical Research Regulations
• Informed Consent matters
• Medical staff and peer review matters
Outside General Counsel Services

KLP’s general counsel services are a unique way for healthcare clients to obtain the expertise and accessibility of an in-house legal team without having to endure the burden of employing and managing a team of attorneys. Our clients typically engage us on a set monthly retainer based on business size, volume of work involved and other business specific factors. We provide a complete turnkey solution for all legal needs, or we can work with existing in-house counsel to provide specialized guidance with a particular challenge, such as with post-acquisition employment compliance integration or the development and maintenance of a licensure platform.

As “outside general counsel” we provide the following services personalized to the specific needs of our clients:

Compliance and Risk Assessment. We personally visit our clients’ business site and conduct a top to bottom review of processes to assess risk and establish relationships with staff. We will know each key employee by name and each of those individuals has access to our expertise at their fingertips.

Contract Review and Negotiation. We draft, revise and update all form contracts and negotiate and document the multitude of contracts our clients need to function. We provide a complete solution from equipment purchase deals to commercial leases and everything in between.

Employment Issues. We help develop sound recruiting, hiring, discipline, termination policies to help our clients minimize administrative claims and litigation risks.

Litigation Management. We manage all aspects of litigation by outside counsel or handle litigation needs ourselves. If hiring other outside counsel is in the best interest of our clients, we will work with outside counsel to keep track of budgets and strategies. We monitor important filings, deposition transcripts and coordinate trial and alternative dispute resolution tactics.

Onsite Office Visits and Management Meetings. We partner with our clients to on site at regular intervals to enable us to work face-to-face with key management personnel in identifying and implementing specific strategies for improving efficiency in a legally sound manner. We regularly participate in key management meetings and provide input as needed.

Transactions and Real Estate Needs. We advise our clients in all aspects of transactions such as the purchase of physician practice, to structuring the ownership of medical office buildings occupied by physician owners. We also negotiate space leases between hospitals and physicians as well as consult in the construction, financing and equipping of continuing care retirement communities, nursing homes, and assisted living facilities.

Matt Kinley, Esq. Healthcare Lawyer at Kinley Law Practice.

 

California Health Record Privacy

 

In California, the Confidentiality of Medical Information Act (“CMIA”) creates rights for patients in their own personal records. While most attention is given to federal law, especially HIPAA and HI-Tech, when trying to understand what to do medical records.

California has created a strong statutory scheme to protect patients’ rights. Codified at Civil Code section 56.10, the Act provides that “No provider of health care provider, service plan or contractor shall disclose medical information regarding a patient of the provider of healthcare or an enrollee or subscriber of a health care service plan without first obtain an authorization” from the patient. The statute then goes on to proscribe in detail the requirements for authorization.

Violation the CMIA will result in fines and a civil cause of action against the party who provided the private healthcare information.

CMIA does have several exceptions. Some the exceptions require the healthcare provider to disclose information, for example under court order or for police or coroner investigations. Other exceptions allow, but do not required, the physician to disclose medical records to other health care providers and healthcare insurance companies. Healthcare providers may also provide information that has been scrubbed of identifiable information to public health studies and other companies who will allow the medical profession to better understand healthcare service.

By Matt Kinley, Esq.

KINLEY TO SPEAK ON “WHO OWNS PATIENT DATA”

R-HEALTH BY THE HEALTH MANAGEMENT INTEREST GROUP SEEKS TO EDUCATE ON THE DANGERS AND OPPORTUNITIES IN PATIENT DATA

University of California, Riverside. HIPAA and the Hi-Tech regulations impose burdens on healthcare providers on how private health information can be utilized.  Given the potential penalties for missteps, this is an important topic for the healthcare industry to grasp.  Tickets are still available!

As a recent Office of Civl Rights Report recently pointed out, 2016 was a record year for enforcement: “OCR has been on a tear, settling 11 cases in 2016 with resolution agreements and corrective action plans. The agency also won a decision by an administrative law judge in an enforcement action contested by a home healthcare and medical equipment supplier (see OCR Slaps Home Health Provider with Penalty.”

Private Health Information must be maintained and utilized in ways that protect the information from exposure.

Matt Kinley is a health care attorney and founder of Kinley Law Practice in California. You can contact him at matt@kinleylawpractice.com.

 

WHAT ABOUT A MANAGEMENT SERVICES ORGANIZATION?

AVOIDING THE PROHIBITION AGAINST NON-PHYSICIAN OWNERSHIP OF MEDICAL ORGANIZATIONS

A management services organization (“MSO”) is an entity which would contract with a physician or a medical corporation owned and operated by physicians. The MSO could be owned by non-physicians.  The physician or medical corporation can pay the MSO for everything. Employees would work for the MSO; the MSO would pay for the lease.  The MSO would pay for all significant expenses and receive a fee for its services.

The Corporate Practice Medicine Doctrine (CPOM) is strong in California. Under this doctrine, physicians must control clinical decisions. The concern is that if business entities owned by non-physicians are permitted to control the rendering of care, they will subordinate clinical care to commercial considerations and profits. The objective, therefore, is to prevent non-physicians and non-physician-owned business entities from influencing treatment decisions.

This presents a significant constraint to physician business ventures. Specifically, if physicians or other clinical personnel work for entities other than professional medical corporations, they may be exposed to disciplinary risks, as well as to forfeiture of revenues.. For non-physician business partners, violating the CPOM may also bring both civil and, in extreme cases, potential criminal liability for engaging in medical practice without a license.

MSO

In California, the solution for avoiding violations of the CPOM in business ventures in which physicians work with businesses owned by unlicensed persons is a contractual relationship between the physician entity and the unlicensed business entity, or a “management services organization (MSO).” This is a business vehicle that permits unlicensed persons to provide services to physicians and their professional medical corporations. In its simplest form, an MSO provides basic practice support services to physicians and professional medical corporations via a contractual relationship, commonly known as a management services agreement. These services frequently include activities such as billing and collection, administrative support in certain areas, and electronic data interchange (e.g. electronic billing). Some MSO’s provide a broader set of services: the MSO may purchase many of the assets in a medical practice, such as office space or equipment. MSO’s can employ office support staff, and assist with a wide range of non-clinical functions. MSO’s can also assist in functions such as marketing. Often, MSO’s can reduce costs by bringing economies of scale and professional management experience into physician practices, thereby improving operational efficiency and reducing overhead costs.

the MSO must be carefully considered and constructed.  Review and application of relevant laws and regulations is a must.

By Matt Kinley, Esq. of the Kinley Law Practice

Kinley Law Practice starts January, 2017

QUALITY HEALTH LAW ADVICE

The California Healthcare Law Blog was created several years ago to keep the healthcare industry abreast of new developments in health law.  It’s been an amazing journey!  It’s culminated in a new law firm, Kinley Law Practice, committed to supporting health care entities with quality advice.  Give me a call at 562.715.5557 or email me at matt@kinleylawpractice.com with comments or questions.

 

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