I. Two overall observations
1. Consolidation of providers and businesses. This year we are seeing more transactions where two providers or several providers are consolidating operations to provide for greater revenues over a single platform. This is as opposed to transactions where a seller is cashing out at a high multiple of EBIDTA. The consolidation transactions are being done among ASCs, hospitals, (e.g., two hospitals in Rhode Island just announced their merger), group practices and healthcare companies. We are also seeing hospitals increasingly acquiring and/or combining with ASCs and practices. We are currently involved in handling an ASC/ASC consolidation transaction, a hospital/hospital consolidation transaction and a hospital/ASC consolidation effort.
2. Seven key legal issues and areas for 2009. We see the following as seven key legal areas of concern for hospitals, ASCs and practices in 2009.
(i) Data mining. We expect increased enforcement as the government uses government data and data mining more fully to pursue both billing fraud and anti-kickback cases. The cases are being driven by both whistleblowers and by the governments own investigations. Here, the government is increasingly using data mining to drive enforcement and to detect patterns in billing that differ from norms. We are also seeing qui tam cases and private party complaints leading to more complete investigations.
(ii) Recovery Audit Contractors. There is substantial concern among hospitals that data entry errors and other errors will provide ammunition for RACs. The RAC program is set to recommence this March. There is a great deal of focus on items that can be picked up by the use of computers and data mining — heavy on data use as opposed to relationship-kickback type crime.
(iii) Stark Act concerns. Here, there is little wiggle room for technical violations, and a backlog of Stark cases at CMS. We are seeing more overall activity here than ever before. For a copy of a white paper on “11 Stark Issues,” see below.
(iv) Medicaid enforcement. False claims and similar efforts are being unveiled at state levels to fight fraud and to drive state false claims act recoveries. We have seen states (such as Illinois) take new approaches to kickback and false claim cases and unique positions on fee splitting and kickback cases.
(v) Quality of care. We see more cases being brought against providers by regulators based on substandard quality of care. We have one such investigation that is currently ongoing.
(vi) Anti-kickback cases. These are a variant of Stark Act cases but subject to a different standard of proof of intent and not just applicable to physicians.
(vii) Tax-exempt compensation and community benefits. The IRS recently completed a study that indicates that the average CEO compensation at the 500 hospitals it reviewed was $490,000. It also found compensation on average of $1.4 million at the top 20 hospitals. Finally, it found that approximately 10 percent of all hospitals provided nearly 60 percent of all community benefits as measured by the IRS.
II. White papers available — No charge
We have recently completed three white papers and articles that are available upon request. If you have an interest in obtaining a copy of any of the following, please contact me and we would be happy to provide you a copy of the same.
1. Developing Centers of Excellence — Strategies and Tactics. This is an article regarding developing centers of excellence. It focuses on both developing a strategic vision and the tactics to be used in developing specialty driven centers of excellence. This was drafted from a presentation we gave at a conference in February devoted to developing orthopedic-driven centers of excellence. The talk was well received. If you would like a copy of the paper, please e-mail me at sbecker@mcguirewoods.com or Kirsten Doell at kdoell@mcguirewoods.com.
2. ASC Transactions – An Overview and Primer on Key Issues. This paper was drafted as part of a presentation for both the American Health Lawyers Association and for the February issue of Becker’s ASC Review. It discusses pricing of surgery centers as well as the key legal agreements and legal and business issues related to such transactions. Should you desire a copy of this paper or a copy of the February issue of Becker’s ASC Review, please e-mail me at sbecker@mcguirewoods.com or Kirsten Doell at kdoell@mcguirewoods.com. Also, please feel free to visit www.BeckersASC.com.
3. 11 Key Concepts from the Stark Act. As we review different Stark issues for clients, we see more different and interesting issues than ever before. These relate to such items as lithotripsy, agreements that are not in writing, per-click arrangements, the impact of the “Stand in the Shoes” rules on hospital relationships with their subsidiaries and several other issues. Should you desire a copy of this paper, please e-mail me at sbecker@mcguirewoods.com or Kirsten Doell at kdoell@mcguirewoods.com.
III. 7th Annual Orthopedic, Spine, and Pain Management Driven ASC Conference
This June we are hosting our 7th Annual Orthopedic, Spine and Pain Management Driven ASC Conference. The conference is June 11-13. For this conference, we have 94 speakers, 68 sessions, 30 CEOs and 24 physician leaders speaking. We also have great topics and should have a great turnout. Here are just 27 of the topics covered at the conference:
1. The Evolution of Healthcare and the Impact on ASCs — Uwe Reinhardt, James Madison Professor of Political Economy and Professor of Economics at Princeton University
2. Orthopedics – The Forecast for the Next Five Years — John Cherf, MD, Dept. of Orthopedics, The Neurologic & Orthopedic Hospital of Chicago
3. Using Spine as the Backbone of a Multi-Specialty ASC — James Lynch, MD, Surgery Center of Reno
4. 7 Steps to Maximizing an Orthopedic-Driven ASC’s Returns in a Tough Economy — Brent Lambert, MD, CEO, Ambulatory Surgical Centers of America
5. Case Study – Two Years Later, A Physician-Owned Spine ASC: A Frank and Open Discussion of Financial Performance, Organizational Issues, Challenges and Problems — John Caruso, MD, Parkway Surgery Center, Hagerstown, Maryland
6. A Payor’s View of Orthopedics, Spine and Pain Management — Steven Stern, MD, VP Neuroscience, Orthopedics and Spine, United Healthcare
7. A Case Study Review of Current Outcomes and Issues — Marcus Williamson, MD, and George Goodwin, SVP and Chief Development Officer, Symbion Healthcare
8. Making Big Cases Profitable in an ASC — Naya Kehayes, CEO, Eveia Healthcare; and Greg Cunniff, CFO, National Surgical Care
9. Using Orthopedics and Spine to Turn Around an ASC — Tom Mallon, CEO, and Jeff Simmons, President Western Division, Regent Surgical Health
10. Capturing Your Partners’ Cases; The Carrot and Stick Approach — Chris Bishop, VP, Ambulatory Surgical Centers of America
11. Key Legal Issues: Safe Harbor Compliance, Out of Network, and Other Legal Issues — Scott Becker, JD, CPA, Partner, and Bart Walker, JD, McGuireWoods
12. How Economic Conditions Impact Health Care Strategies for Success — Tom Geiser, Senior Advisor, Texas Pacific Group; and Joe Clark, Executive Vice President, Surgical Care Affiliates
13. Uni Knees and Shoulders in the Outpatient Setting: Cost, Staffing and Profitability Issues — Peter Kurzweil, MD, and Margarita de Jesus, Administrator, Surgery Center of Long Beach
14. Key Issues Faced by ASCs Today — Thomas Yerden, CEO and Founder, TRY HealthCare Solutions
15. The Pros and Cons of Total Knees in a 23-Hour Setting: Financial and Safety Issues — Eric Monesmith, MD, OrthoIndy; and John Martin, CEO, OrthoIndy
16. Pain Management: 5 Keys to a Superior Pain Management Program Surgery Center — Lance Lehmann, MD, Medical Director, and Liliana Rodriguez Lehmann, MBA, Hallandale Outpatient Surgical Center
17. Implant Costs: Why Facility-Physician Collaboration Makes Sense — Karen Barrow, SVP Business Development, Amerinet
18. Hand Surgery in ASCs – Key Concepts for Success— Ed Rudisill, MD, The Hand Center, Greensville, SC
19. Pain Management in ASCs – Current Methods to Increase Profits — Amy Mowles, President & CEO, Mowles Medical Practice Management
20. 5 Tips for Managing Anesthesia in Your ASC — Thomas Yerden, CEO and Founder, TRY HealthCare Solutions
21. How to Recruit Great Surgeons to Work at Your ASC — Robert Carrera, President, Pinnacle III
22. Turnarounds: 2 Case Studies; 5 Key Ideas for Success — Joe Zasa, President, Woodrum/ASD
23. What Does a National Company Want After a Deal? 10 Facts That Will Drive a Buyer Away — Bill Kennedy, SVP Business Development, NovaMed; Kenny Hancock, President and Chief Development Officer, Meridian Surgical Partners; Richard Pence, President and COO, National Surgical Care; George Goodwin, SVP and Chief Development Officer, Symbion
24. Is Your Center too Dependent on a Single Specialty? How to Diversify and Make Change Happen — John Seitz, CEO, Ambulatory Surgical Group; Joe Zasa, President, Woodrum/ASD; and Larry Taylor, President and CEO, Practice Partners in Healthcare
25. 5 Core Concepts for Great ASC Joint Ventures With Hospital Partners — Mike Pankey, Administrator, Ambulatory Surgery Center of Spartanburg; and Caryl Serbin, CEO, Serbin Surgery Center Billing
26. Assessing the Profitability of Orthopedics, Spine and Pain in ASCS — Luke Lambert, CEO, Ambulatory Surgery Centers of America
27. 5 Core Strategies to Immediately Improve ASC and Hospital Operations — Doug Johnson, COO, RMC MedStone Capital
Should you have questions about the conference or desire to see a copy of the brochure, please contact me at sbecker@mcguirewoods.com or Kirsten Doell at kdoell@mcguirewoods.com or go to www.BeckersASC.com. In addition, should you desire to register for the conference, please feel free to deduct $100 from the registration price if registering for the main conference. Please deduct $200 if registering for the combined pre-conference and main conference. Please note on the registration, $100 (main conference only) or $200 (for main and pre-conference) discount per Scott Becker.
Should you have any questions, please contact me at sbecker@mcguirewoods.com or at (312) 750-6016.
Very truly yours,
Scott Becker
