Top Three Downstream Issues in Physician Private Equity Transactions

Overpayment

We have posted previously in Healthcare Law Today related to physician private equity transactions, commonly called “recapitalizations.” Most of the discussions have been about the “who,” the “why” and the “how” of these transactions.  What we haven’t yet discussed are the issues that may arise following the closing of one of these transactions.  While the impact of the issues generally emerge post-closing, many can be addressed, or at least recognized, at the time the original transaction is negotiated. Following are three material issues that often surface:

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Medicare Remote Patient Monitoring: CMS Allows “Incident to” Billing

medicaid

CMS just announced a clarification that remote patient monitoring under CPT code 99457 may be furnished by auxiliary personnel, “incident to” the billing practitioner’s professional services.  An “incident to” service is one that is performed under the supervision of a physician (broadly defined), and billed to Medicare in the name of the physician, subject to certain requirements, one of which is discussed below.  The announcement came in a technical correction issued March 14, 2019 and is effective immediately.  This is a highly-anticipated change among remote patient monitoring companies, as we discussed in greater detail in our previous coverage.

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Website Accessibility: An Issue for Health Care Companies

Website accessibility under the Americans with Disabilities Act of 1990 (ADA) and Rehabilitation Act of 1973 (Rehabilitation Act) is an issue of which health care providers and other health care companies should be aware. There have been lawsuits filed that include claims for website accessibility under these Acts. A number of entities, including health care providers, have received complaints on behalf of visually impaired individuals claiming that the entity’s web presence is not equally accessible to the visually impaired. These claims are brought under Title III of the ADA and Section 508 of the Rehabilitation Act on the theory that websites are public accommodations. Fueled by success in at least one federal district court case, complaints are being filed against private entities on the same theory. Thus, health care companies should be cognizant of website accessibility issues and take steps necessary to address compliance.

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The Good and the Bad of the New MassHealth Telemedicine Rule

MassHealth

The Massachusetts Medicaid Program (known locally as MassHealth) issued a new All Provider Bulletin in January, setting forth new policies for certain behavioral health services delivered to MassHealth covered patients.  The guidance received mixed responses from the telehealth industry.

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Revoking Controlled Substances Registrations: the DEA’s Weapon to Fight Abusive Prescribing and Dispensing

pharmacy

In response to the opioid crisis, the Drug Enforcement Administration (DEA) is cracking down on pharmacies, pharmacists, and prescribers by leveraging an old enforcement weapon: revocation of controlled substance registrations. The DEA actively revived this enforcement mechanism in February and March of 2018 when it arrested 29 people and revoked 147 controlled substance registrations throughout the country.1 Revocations carry the harsh consequence of preventing pharmacies, pharmacists, and prescribers from dispensing or prescribing federally controlled substances, which effectively renders the affected provider out-of-business. This article will discuss the DEA’s authority to revoke registrations, the revocation process and appeal options, and implications for pharmacies, pharmacists, and prescribers.

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