At the Becker's ASC 21st Annual Meeting — The Business and Operations of ASCs, Oct. 23 to 25, in Chicago, Jeffrey C. Clark, JD, senior counsel and David J. Pivnick, JD, attorney at McGuireWoods, discussed trends in litigation arising from the False Claims as well as non-compete clauses.
"There has been a dramatic increase in False Claims cases," said Mr. Pivnick. "The number of cases nearly doubled from 2008 to 2012."
Here are five trends related to False Claims filings, according to Mr. Pivnick:
• There has been a shift in type of False Claims suits. For example, there has been an uptick in challenges around medical necessities and standard of care.
• There has been an increase in False Claims suits initiated by whistleblowers.
• The government is monitoring the statistics a lot more vigorously and has been very public about their focus on the criminal aspect of the False Claims Act.
• The government is also intervening more often in False Claims suits.
• The government is putting greater pressure on entities — an entity cannot just claim that their hands are clean and that there were a few bad actors and they must proactively help the government.
"At the end of the day if you are running a robust ASC, you will have a lot of claims," said Mr. Pivnick. "Compliance training is very important and paperwork needs to be filled out accurately and diligently."
According to Mr. Clark, non-compete clauses are an issue that ASCs often have to deal with. One of the key things to know about non-competes are that they are never guaranteed and there are numerous hurdles to enforcing these clauses.
"Non-competes can be challenged and the judge can overturn them," he said. "The lesson to learn is to set yourself in as good a position as possible when trying to enforce a non-compete. Go back to your operating agreement and look at your non-compete clause because if it is challenged in court, the judge is going to examine the agreement."
Mr. Clark also said that when making carve-outs for non-compete clauses, ASCs should make them as specific as possible so as to set a limited precedent.