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Fall 03

DO YOUR PRACTICE’S BUYOUT PROVISIONS MAKE SENSE?

 

In today’s ever changing medical marketplace, many physicians are leaving their practices to pursue other opportunities.  Some are leaving the area.  Others are getting out of or greatly reducing their involvement in clinical medicine.

           

              Many doctors are leaving their practices much earlier than anyone had anticipated, in light of the economic pressures caused by dramatically increasing malpractice insurance premium rates and flat or decreasing reimbursement rates from third parties. 


             The valuations of medical practices in most area locales have dropped dramatically from where they were in the mid-1990’s when hospitals and large teaching institutions were falling over themselves to offer big prices to physicians for their practices.  A lot has changed.

 

            Therefore, many practices’ shareholder documents call for buyout formulas/prices which are unrealistically high in today’s weaker healthcare world. 

 

        That is a major reason why we urge our group practice clients to look critically at their inter-doctor Agreements on at least an annual basis.  

           

          It is always dangerous to generalize, since each practice situation is unique.  Some practices still have a reasonably high intangible value because of their unique circumstances.  However, the average practice out there does not have the large goodwill element that it would have had five or six years ago. 

           

         A risk of having Agreements in place that do not reflect the realities of today is thatit might actually encourage one of the owner/doctors to leave the practice in order to get the “big buyout.”  Furthermore, one of the justifications for a goodwill/intangible element in a buyout in the past was that the Group would be able to hire a replacement physician to work as an employee for a period of years and then as a less than equal “Partner” for a period of years before becoming a “fully equal compensation” owner.  This spread in compensation provided the funds from which the departing doctor would receive his buyout and often left some extra profit for the remaining Practice owners.

 

In today’s climate, where groups are often losing doctors much more quickly than they can replace them, this theory is not really working in many practice settings.

           

      Therefore, if a doctor leaves and has a reasonably high goodwill buyout in his agreements, the remaining doctors may be “stuck” with this without having the ability to take advantage of the patient base/referral patterns goodwill left behind by the departing doctor.  The doctors remaining may already be fully busy and may not be able to hire a new doctor to pick up the slack and maintain the patient and dollar volume that the departing doctor had been generating while in the Practice.  When that is the case, the buyout price really ends up coming, at least partially, from the pockets of the doctors who remain.  That causes economic problems and bad feelings.

       

     This sometimes results in a “race out the door.”  Others have called it a “last doctor standing” club whereby the last one remaining gets “stuck” with a practice he/she cannot handle and buyout arrangements which are unaffordable. 

 

       I am not a “gloom and doomer.”  However, these are issues that are real and must be faced by the doctors to be sure that their inter-doctor arrangements are realistic and are acceptable to them. 

 

       How might a Group at least minimize the negative impacts of such events? 

 

            When Group members discuss and negotiate their “partnership” arrangements (before anyone knows who will be the next to leave) it is generally believed that the “good of the Group” should be paramount so that the Practice will be able to do reasonably well into the future and not be “bankrupted” by the buyout obligations.  There are various provisions which help to minimize the potential problems. 

 

            Most groups will require a relatively lengthy notice of termination time frame by a departing doctor before that physician may receive a full buyout from the Practice.  For example, some Agreements call for a minimum of 180 days prior written notice for a departing doctor to voluntarily terminate employment.  If less than that is provided, the buyout entitlement which the departing physician would otherwise receive would be reduced by 1/180th for every day less than 180 days for which such notice was not given. 

           

         Some Groups will attempt to minimize the financial drain on the Practice/remaining doctors by capping the buyout payments in any given fiscal year to a certain percentage of the Practice’s gross income or net income.  There is no magic percentage that fits every situation.  With the help of one’s advisors, projections should be put together and critically looked at to determine what realistic “safety zone” would make sense.  For example, one group we recently worked with capped the annual buyout payments to 4% of the Practice’s net income - including salaries, bonus, and retirement plan contributions for the remaining physician/owners of the Practice.

           

       Others will clearly state in the documentation that some or all of the buyout entitlement would be “forfeited” if the departing doctor were to compete (as defined in the documentation) with the Practice upon departure and for a reasonable (perhaps the time frame of the buyout payments) time period after departure.

           

      Other Groups will provide for a lesser buyout for the doctor voluntarily leaving the Practice, in comparison to what that doctor would receive if he/she were to leave the Practice on account of death, disability, or defined retirement (for example, a minimum of age 65 and 20 years of service in the Practice). 

        

        Although it is not common, some Groups are now attempting to balance the need to protect the Group with the desires of the departing doctors to get a larger buyout than just the value of the hard assets and

receivables by using a form of “replacement physician” concept. 

      

         For example, we recently worked with a dermatology practice whereby the departing doctor would have certain financial obligations to the Practice unless and until a replacement physician was employed by the Practice.  In that situation, the departing shareholder doctor would agree to be responsible for up to nine months from the date of departure, as a setoff against the purchase price to which he would otherwise have an entitlement, for his pro rata share of the payment of any loan interest payments of the Practice; the lease payments for any office real estate; the lease payments for any major practice equipment; and the like.  This approach attempts to balance things from a financial risk standpoint between the two sides. 

    

        Some Groups will state that there will not be a goodwill payout at all until a replacement physician is hired by the Practice, in a circumstance whereby the departing doctor left voluntarily.  This sounds good.  However, it can be very difficult to administer and can open the door to “arguments” about how hard the Practice is working to try to find a replacement physician, how much that doctor should be paid, etc. 

 

            The bottom line is that each Group needs to look at its situation very carefully and critically to assure that everyone understands what the present documents say and what the current economic realities are.  With the assistance of experienced advisors in this field, the Group will hopefully be able to arrive at a buyout arrangement that balances the interests of all parties and is acceptable to the parties involved.

 

            Another thing to be aware of relates to who is responsible for making the payments.  If one is dealing with a Practice that is a professional corporation or LLC (where the owners have limited liability), the entity alone is responsible for making these payments unless and until individual physicians personally guarantee the obligations.  It is therefore important to look at the documents and see if the physician and/or his/her spouse are guaranteeing these obligations for the departees.

 

            To avoid unexpected and potentially unpleasant surprises, be sure you clearly understand what your entitlements and responsibilities are and determine whether changes are merited.

 

Vasilios J. Kalogredis

 

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2003 Tax Law Summary

The Jobs and Growth Tax Relief Reconciliation Act of 2003 (“2003 Act”) contains significant tax cuts for physicians, dentists and their practice entities.  The highlights of the 2003 Act are as follows:

Rate Reductions and Tax Bracket Expansions. Rate reductions that were scheduled to go into effect in 2006 under the 2001 Tax Act are now effective retroactive to January 1, 2003.  The tax rates above the 15% level for 2003 are 25%, 28%, 33% and 35%, down from 27%, 30%, 35% and 38.6%.  In addition, the 10% bracket for married couples filing jointly for 2003 ends at $14,000 of taxable income, up from $12,000, a change that was originally scheduled to go into effect 2008.  For single filers, the 10% bracket for 2003 ends at $7,000, up from $6,000.  Also, the 15% tax bracket has been expanded for married couples filing joint returns.  These changes alone could save a married physician whose salary is $200,000 more than $3,000 in federal income tax in 2003.

Tax Rates on Capital Gains and Dividends.  Effective for sales and exchanges after May 5, 2003 and before January 1, 2009, the 20% rate on adjusted net long-term capital gains has been reduced to 15%.  This change is important both for investors and healthcare practitioners who are selling all or a portion of their practices.  In a typical buy-in situation with a professional corporation, the amount allocated to the stock will be taxed at capital gains rates to the extent the sales price exceeds the doctor’s basis in his or her stock, and the rest of the buy-in will be “paid for” by means of a salary differential, which is taxed at ordinary income rates.  Sellers will now have more motivation to allocate a higher amount to the stock since the capital gains tax rates have been lowered by 5%, which is greater than the 2% or 3.6% drop in ordinary income rates.

In addition, dividends received in tax years beginning after 2002 and before 2009 by individual shareholders from domestic corporations will be taxed at the lower long-term capital gains rate of 15%, instead of at ordinary income rates.  This will result in savings of more than 20% for high-income taxpayers.  Also, for medical and dental practices that operate as S Corporations, any S Corporation distributions paid to the shareholders in the form of a dividend as opposed to salary will now be taxed at the much lower rates and will continue not to be subject to social security taxes.  However, be sure to discuss this issue with your tax advisor as the IRS could recharacterize some of the distribution as salary if unreasonably low salary payments are made.  There also may be circumstances that a C Corporation may want to declare a dividend to take advantage of the lower rates, especially if paid out of accumulated earnings.

Child Tax Credit.  For 2003 and 2004, the child tax credit will increase from $600 per qualifying dependent child to $1,000.  If eligible, you should have already received a check from the IRS for this increased credit. The credit is then scheduled to be reduced to $700 in 2005,  2006, 2007 and 2008, then

increased to $800 in 2009 and $1,000 in 2010, then reduced to $500 in 2011.  Note that the 2003 Act does not change the threshold amounts that phase-out the child tax credit under pre-2003 Act Law.  The credit is reduced by $50 for every $1,000, or fraction thereof, by which the taxpayer’s modified adjusted gross income exceeds $110,000 for married couples filing jointly and $75,000 for single filers.  There have been proposed bills in Congress that would increase such threshold, but they have not been passed.

 

Alternative Minimum Tax Relief.  For 2003 and 2004, the maximum alternative minimum tax exemption for joint filers has been increased to $58,000 from $49,000 and to $40,250 from $35,750 for single filers.  This will help some taxpayers with relatively high itemized deductions escape from or reduce the exposure to the alternative minimum tax.

Increase in Section 179 Expensing and Bonus Depreciation.  Purchases of assets such as medical equipment and office computer systems can be written off in the year placed in service up to certain annual limits. Those annual limits have been increased from $25,000 to $100,000 for the purchasing entity’s tax year starting in 2003, 2004 and 2005.  In addition, under the 2002 Tax Act, an additional 30% of depreciation was available on new assets (but not real estate) placed into service after September 10, 2001.  Under the 2003 Act, that “bonus” depreciation has been increased to 50% for property acquired and placed in service after May 5, 2003 and before January 1, 2005.  These changes could significantly  impact the stock purchase formula in many Buy-Sell Agreements that base the stock price on net book value, as assets that were previously depreciated over five or seven years could now be worth nothing on the books.

         In summary, the 2003 Act provides for significant tax cuts and creates new planning opportunities.  Be sure to contact your tax advisors prior to the end of the year to take full advantage of the changes.

 

Jeffrey B. Sansweet

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OIG SPECIAL ADVISORY BULLETIN

ON CONTRACTUAL JOINT VENTURES

           In April, 2003, the Office of Inspector General of the Department of Health and Human Services (“OIG”) issued a Special Advisory Bulletin on “Contractual Joint Ventures” (hereinafter referred to as the “Bulletin”).  The OIG stated that the issuance of the Bulletin was related to its concern that “suspect” contractual joint ventures were proliferating. 

             As you probably know, the federal Anti-Kickback Statute essentially prohibits a person from knowingly and willfully soliciting, receiving, offering or paying anything of value to induce the referral of items or services payable by a federal health care program.  The Bulletin focuses on contractual arrangements in which a health care provider in one line of business expands into a related line of business by contracting with an existing manager/supplier to provide the related item or service to the first party’s

existing patient population.  The OIG notes that problematic contractual joint venture arrangements typically exhibit certain common elements.  According to the OIG, these common elements include the following:

  • One of the providers is expanding into a related line of business which is dependent upon referrals from or other business generated by its existing business.
  • The provider expanding its business neither operates the new business itself nor commits substantial financial, capital or human resources to the venture, but rather contracts out substantially all of the operations of the new business.

The individual or entity who manages or provides supplies to the provider’s expanded line of business is also an established provider of the same services as the other party’s new line of business and would be a competitor of such new line of business absent the contractual arrangement.

  • Each party shares in the economic benefit of the expanded line of business, either in the form of contractual payments to the party supplying goods or services to the venture or in the receipt of profits from the business. 
  • In many arrangements, aggregate payments to the party providing management and operational services or supplies to the contractual joint venture arrangement typically vary with the volume or value of business generated for the new line of business by the first party.  The OIG asserts that through the contractual payments, the parties are able to share the profits of the new line of business.

There are various statutory and regulatory “safe harbors” that may be used to protect arrangements from violating the federal Anti-Kickback Statute where all of the requirements of such safe harbors are met.  In the Bulletin, the OIG notes that efforts to satisfy a safe-harbor regulation for each separate agreement within a contractual joint venture arrangement may be ineffectual.  This is disturbing, as the purpose behind promulgating safe harbors is to provide assurance to contracting parties that they will not violate the federal Anti-Kickback Statute if the safe harbors are satisfied.  The OIG points to several examples in this regard.  First, the OIG states that discounted items provided by one party to another in a contractual joint venture arrangement, where the discount is given as a part of an over-arching business arrangement, cannot qualify for protection under the discount safe harbor, as discounted prices offered by a seller to a buyer in connection with a common enterprise are not protected.  The OIG also states that even if the various contracts making up a contractual joint venture could satisfy one or more safe harbors, they would only protect the remuneration flowing from the provider of services to the manager/supplier for services rendered, but not the opportunity to generate a fee and the profit that is allegedly being generated by the manager/supplier for the provider (purportedly by agreeing to provide services to the provider that it could otherwise provide on its own for less than the total available reimbursement).

Finally, the Bulletin sets forth the factors that the OIG considers to be “indicia” of a contractual joint venture that it may find to be suspect.  These indicia include: a provider is seeking to expand into a new health care line of business; the newly created line of business predominately or exclusively serves the provider’s existing patient base; there is little or no bona fide business risk to the provider; the party providing management and operational services or supplies to the provider would be a competitor of the provider’s new line of business;  the manager/supplier provides critical services to the provider, including day-to-day management, billing services, equipment and personnel; the arrangement includes non-compete clauses that prevent the parties from competing with the venture or each other; and the “practical effect of the arrangement, viewed in its entirety, is to provide the Owner

the opportunity to bill insurers and patients for business otherwise provided by the Manager/Supplier.” OIG Special Advisory Bulletin on Contractual Joint Ventures, p. 6.  The presence of these indicia does not mean that an arrangement is illegal, but must be reviewed carefully to insure compliance with the federal Anti-Kickback Statute.

As you can see, the Bulletin casts a shadow over many arrangements that are contemplated by physicians and other health care providers.  Since the Bulletin was issued in April, 2003, its long-reaching effect is not yet known, but health care attorneys are concerned with its scope and with some of the assertions made by the OIG in the Bulletin.  Any contractual arrangements between health care providers must include an analysis of this Bulletin as part of a review of the impact of the federal Anti-Kickback Statute on such potential arrangements.  Such an analysis must be undertaken in addition to any concerns that may arise under the federal Stark II Legislation.  If you have any questions with regard to this Bulletin or its effect on an existing or possible contractual arrangement, please feel free to contact us. 

 

Michael R. Burke

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MIGHT SEMI-RETIREMENT BE IN YOUR FUTURE?

 

        Many doctors we know truly love clinical practice.  However, some of them would like to cut back from the intensity and long hours of fulltime practice.  Some would like to drop night and/or weekend call.  Others want a specific percentage reduction (say thirty percent) of all obligations of fulltime practice in their Group.  Others are willing to be fully busy “when in town,” but want substantially more time off (say 12 weeks)each year.  Dealing with these issues in a Group can be touchy.  It deals with work burdens, economics and personalities.  No one solution works in every case.  However, we have experience in helping Groups openly address the issues and attempt to arrive at a “win-win” solution.

Vasilios J. Kalogredis

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Spring 03

HIPAA UPDATE – SPRING 2003

As you probably know by now, the privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") will take effect on April 14, 2003. Various requirements are mandated by the provisions of the privacy regulations, including the provision of a notice of privacy practices to patients, the designation of a privacy officer, the use of business associate agreements with certain individuals or entities with whom you share protected health information, the maintenance of a log of all disclosures made of patient records, and training and education of professionals and office staff.

The HIPAA rules on electronic transactions and code sets will become effective October 16, 2003, for those providers that filed the compliance plan extension form with the Department of Health and Human Services. These rules are already in effect for those providers and other covered entities who did not file such an extension. The transaction and code set standards are designed to standardize the electronic exchange of patient-related information between providers and payors. In the extension application that was filed by most providers to extend the date for compliance with the electronic transactions and code set regulations from October 16, 2002 to October 16, 2003, providers were required to commit to begin testing towards meeting these standards by April 16, 2003. You should contact your billing software vendor or information technology professional with regard to your ability to meet these requirements in accordance with the timelines set forth by the HIPAA regulations in this regard.

Finally, on February 20, 2003, the Department of Health and Human Services issued final rules governing the security of protected health information. The security rules focus on the manner in which covered entities under HIPAA are required to safeguard and protect the confidentiality of electronic protected health information. However, covered entities under HIPAA will not have to comply with the final security rules until April 21, 2005. Since the privacy and electronic transactions and code set rules have compliance dates within the 2003 year, those are the rules that should be focused on at this point. Once you have complied with these standards, your attention should turn to the security standards. A future issue of the Newsletter will focus more prominently on the HIPAA security rules and what they mean to you.

If you have any questions with regard to HIPAA and its effect on your practice, please do not hesitate to contact us.

Michael R. Burke

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EMPLOYMENT CONTRACT ISSUES

Who Pays for the Tail?

Since most malpractice insurance carriers will only write policies on a "claims-made" basis, as opposed to occurrence policies, the employment contract should address the issue of whose responsibility it is to pay the required "tail" coverage upon termination of employment and termination of the policy. The contract may provide that the physician must pay the tail and the physician may request that the practice pay the tail. A reasonable alternative would be to divide the cost of the tail equally between the practice and the physician. Another option is to require the physician to pay the tail if he or she quits or is terminated for certain specified causes, and require the practice to pay the tail if the practice terminates the physician without cause or chooses not to offer partnership. We have also seen contracts where the practice pays the tail upon any termination in the first year, and thereafter the tail is split equally between the practice and the physician. Of course, if the physician remains in practice in Pennsylvania, and maintains coverage with the same carrier, no tail should be required. In addition, most policies waive the tail upon death, disability or retirement after a certain age and number of years covered under the policy.

Restrictive Covenants

Another contentious issue in contract negotiations involves the restrictive covenant. Almost all contracts do contain a restrictive covenant, except those in a few states where they are generally unenforceable in an employment setting such as California, Massachusetts and Delaware. Each restrictive covenant is unique, but a typical one in the Philadelphia area may prohibit a physician from practicing within a five (5)-to-ten (10) mile radius of the offices for a period of two (2) years after termination. The covenant may also provide for a liquidated damages amount of one (1) year's salary, which upon payment to the practice, would allow the physician to cancel the covenant.

There are many ways to "soften" the covenant to make the deal more attractive to the new physician, while still protecting what the practice has built. With respect to the restricted area, the practice can use an outlined area of a map which may prohibit practicing only three (3) miles north, but twelve (12) miles south, if that coincides more closely with its drawing area. In addition, if a practice has multiple locations, the restricted area may only run from those locations where the physician spends more than twenty percent (20%) of his or her time. The efforts to tailor the covenant will also improve the chances that the covenant will be enforceable in court.

The length of the restriction could also be reduced to one (1) year or eighteen (18) months. Alternatively, it could apply for as long as the physician was employed by the practice, up to twenty-four (24) months. Likewise, if there is a liquidated damages provision, the dollar amount could be reduced if the physician is employed for less than one (1) year. Another possible negotiating point would be to have the covenant excused if the practice terminates the physician without cause.

Compensation

Compensation is always an issue. Many contracts provide for a guaranteed base salary for at least the first year and an incentive bonus should the practice's collections from the physician's services exceed a certain level. For example, the base salary might be $120,000 with a bonus equal to thirty percent (30%) of the physician's collections in excess of $300,000. The threshold collections level is typically 2.5 to 3 times the base salary and the percentage is usually between twenty percent (20%) and forty percent (40%) so that the practice covers its overhead and perhaps makes a small profit. The contract may also provide that the bonus is not earned unless the physician remains employed at the end of the contract year and not paid until thirty (30) to sixty (60) days after the year.

One common variation on the bonus arrangement is to have tiers of collection levels with different bonus percentages. For example, the associate may be paid twenty (20%) percent of his or her collections between $300,000 and $360,000, thirty percent (30%) of collections between $360,000 and $450,000, and forty percent of (40%) collections in excess of $450,000. This method takes into account the fact that the incremental practice overhead becomes lower as collections grow higher. In addition, on occasion, a practice may pay a bonus on a monthly or quarterly basis before the end of the year once the collections threshold is met. This helps with the issue raised by physicians that the practice could terminate their employment prior to the end of the year to avoid paying a bonus. However, most practices do not go a step further and pay out a bonus to a physician who leaves during the year even though he or she may have reached the threshold collection level on a pro rata basis.

Term of Contract

Finally, the term of the contract can be an issue. The most common method is to have an indefinite term, with the right of either party to terminate at any time without cause upon either thirty (30), sixty (60) or ninety (90) days written notice. In addition, the practice can typically terminate a physician immediately for cause, which would include loss of license, loss of hospital staff privileges, inability to obtain malpractice insurance, exclusion from participation with third party payors, and material breach of the agreement. Salary after the first year is typically up for negotiation and future "partnership" is not often promised or mentioned at all in the contract.

Many physicians with leverage, especially those that are moving to a new area with families, are not willing to live with the risk of being fired without cause early on and also insist on knowing more about how the "buy-in" will work. Some practices are willing to provide that termination would only be for cause in the first year. Some practices also may give the physician a non legally-binding letter of intent which sets forth the anticipated date he or she would become a partner (usually after two (2) or three (3) years) and how the buy-in will be structured. It is rare that a practice will guarantee partnership and its details up front.

Jeffrey B. Sansweet

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SHOULD YOU SIGN A LETTER OF INTENT?

Signing a letter of intent may appear to be a relatively painless, low risk, thing to do. However, such a document may prove to be a wolf in sheep's clothing.

In our representation of doctors and healthcare practices, we most often see the letter of intent being pushed by a larger organization upon a doctor looking to be employed by or looking to sell his or her practice to such an organization.

One of the most seductive characteristics of a letter of intent is the perception that it is nonbinding. Signing before carefully reading and understanding the document can be a recipe for disaster. Of course, since each practice arrangement is unique, both the practice and the physician should obtain counsel to negotiate the best deal possible.

Courts have ruled that letters of intent can and do create binding obligations on the parties who sign them. That can be true even if certain issues have not been finalized.

The execution of a "nonbinding" letter of intent may unduly tie one's (and one's attorney's) hands in the negotiation process as well. If the "nonbinding" letter sets forth economic terms (e.g., salary, bonus structure, purchase price, etc.) that a party may believe are still subject to negotiation, it may be difficult to change these terms pragmatically. The other side can easily say, "You signed it, why are you now trying to change the deal?"

For example, a physician may sign such a letter, then take a closer look at it and then think about backing out of the deal. The prospective buyer, hiring party, or recruiter may become upset. Charges that the physician did not negotiate in good faith or misled the other parties might be made. If and when that happens, some doctors might become intimidated and go through with the transaction for fear of being sued. Sometimes, the physician is actually sued if and when he or she refuses to go through with the proposed transaction.

Therefore, it is very important to carefully craft the language in a letter of intent (if one is to be used at all) to make clear what portions of it are not intended to be binding until execution of "formal documents" and which (if any) are intended to be binding on the executing parties.

In most transactions, we advise against using a letter of intent and urge the parties to immediately start the negotiation of the final agreement itself. When the terms are agreed to and the parties are ready, the legally-binding contract may be signed.

Nevertheless, there are circumstances where it can make sense to execute a letter of intent. If the transaction is a complex one, the parties may want to execute a letter of intent to set forth the agreed to general terms of the deal. A letter of intent might be useful or even required in the process of obtaining financing for the transaction.

A letter of intent may stipulate the terms by which the buyer and its representatives may or may not use the confidential business and financial information provided by the seller. In the case of a sale or merger of a practice, the seller may not want the buyer or potential partner to go through the due diligence process without agreeing to nondisclosure and other confidentiality provisions.

Some buyers want a letter of intent to prevent the seller from negotiating with other potential buyers during the due diligence process or other defined time frame. This provision is often called a "no shop" clause. It protects the buyer who is investing time, money and other resources. However, it does tie the seller's hands.

In short, we generally recommend against use of a letter of intent in most doctor transactions and push for the prompt negotiation and execution of a final contract. However, if and when it is appropriate or the other party insists, it is imperative that its terms and their binding and nonbinding character be clearly understood and clearly agreed to by the signatories before execution.

Vasilios J. Kalogredis

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MEDICAL MALPRACTICE DEFENSE AND PROFESSIONAL LIABILITY INSURANCE

As the number of medical professional liability insurers shrink, more and more physicians will become insured by the same insurance company. This business reality means that there is an increasing likelihood that multiple physician defendants in medical malpractice lawsuits (and their professional corporations) will be insured by the same liability insurance company and perhaps represented by the same lawyers.

When the time comes to discuss settlement of a medical malpractice case, many physicians will start to wonder about the loyalties of their insurance appointed attorneys. The attorneys who regularly handle medical malpractice defense have based their entire practice on a stream of income from insurance companies.

The adjusters who work for insurance companies have an interest in limiting the insurance exposure in anyone’s suit to as few insurance policies as possible. The adjuster will seek to engage the medical professional CAT fund as an excess carrier to add sufficient funds to fund any settlement without impacting upon any other co-defendant insurance policies. This means that it is in the interest of the insurance company to use the available insurance for one doctor rather than to spread the risk over several doctors. While this may make good economic sense from the standpoint of the insurance company, the physician whose policy is targeted is a "sacrificial lamb" offered by the insurance company, through insurance counsel, to appease the plaintiff and settle the case with the least amount of exposure to the insurance company.

Physicians may be well served to hire their own counsel to even the playing field even before this pressure begins. Private counsel should be engaged early enough so he or she may participate in the discovery process, make suggestions concerning the retention of experts and help create the theme to be utilized if the case proceeds to trial.

David R. Dearden

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INDEMNITY PROVISIONS

The law of contracts will permit parties to negotiate for and then allocate which party should bear the risk of performance problems that may develop after the contract is signed. The parties engaged in this risk shifting can, in a written agreement, cover the allocation of risk concepts more comprehensively and can improve the chances that a party will be able to actually recover for an unexpected loss completely, including the attorneys’ fees and costs incurred relative thereto.

A well drafted indemnity clause usually contains a "hold harmless provision." Under this provision one party will assume all of the risk inherent in an undertaking thereby relieving the other party of that responsibility. These clauses are limitation of liability clauses which are disfavored under the law but which are enforceable if they meet stringent standards. The hold harmless agreement must 1) not contravene public policy, 2) must relate to the private affairs of the contracting parties, and 3) must be freely bargained between the parties. In the event that a party wishes to be relieved of responsibility for its own negligence, that language needs to be specifically set forth in the hold harmless provision.

An indemnification clause or agreement is usually on unsecured obligation. Such a clause can be given economic substance by requiring that the indemnifying party purchase liability insurance to cover the foreseeable risk of loss. The existence, scope and security for an indemnification clause also needs to be considered, especially when purchasing a new business. If insurance is not being used to support the indemnity, the parties should consider including a certificate of deposit or other security to back the seller's indemnity. It is also possible to require that the purchase price be paid out over a number of years so that the right of setoff can be specifically set forth in the agreement to support the indemnity. A buyer must consider including all shareholders of a selling entity in the indemnifying agreement and requiring that their liability be both joint and several. If these shareholders hold assets with their respective spouses, the spouses may also need to sign the agreement solely for the purpose of supporting an indemnity. The spouses liability can often be limited to any assets that are transferred to the non-shareholder spouse subsequent to the signing of the indemnity agreement.

Lastly, is it important to consider the provision very carefully when drafting indemnity provisions. In one recent case, the language stated that the indemnity covered "all material liabilities related to the conduct of the Seller prior to [a specific period] regardless of when the related claim may be asserted." The court found that the indemnity provision was broad but that it did not cover a claim that resulted from actions by a previous owner of the business who was not included in the definition of Seller.

Even though the parties negotiated a broad indemnity provision, it was ruled that it would not cover a multi-million dollar environmental clean-up liability. These are just some of the considerations that need to be addressed early in the negotiation because an indemnity provision is not "boilerplate language", but it is a key portion of an agreement that must be carefully crafted to cover potential losses.

David R. Dearden

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WILL A PART-TIME DOCTOR WORK IN YOUR PRACTICE?

The stock market decline has caused many doctors who were seriously considering full retirement from clinical practice, and some who actually had retired, to decide that they would like to practice medicine on a less than full-time basis. That is all well and good, but there are many tough issues which need to be resolved for this to work for everyone.

One of the main issues is the handling of call obligations. Some doctors want to drop night and weekend call altogether. That may work for that individual, but not for the other doctors in the practice. Other part-timers may be willing to exclusively work on weekends and/or weeknights. That has worked well for several of our clients. The key is to openly discuss things and arrive at a mutually satisfactory arrangement.

Some groups have engaged part-timers to focus on a specific aspect of the practice's activities. For example, a semi-retired surgeon may cut back to an office-only practice. It allows that surgeon to continue to see patients and then refer them to the appropriate doctor when surgery is necessary.

Compensation issues need to be addressed up front as well. Some part-timers will be paid a percentage of the collections from services rendered by them. In other settings, the parties will either agree to a set base salary or a total compensation package equal to some percentage of what a full-time doctor in the practice would earn.

Allowing a doctor who has been with a practice for many years to remain with it on a part-time basis can truly be a win-win situation. The doctor is allowed to continue to use his skills and make some money. The practice benefits from the drawing power and performance which that doctor provides.

One of the touchier issues relates to whether a practice will allow a part-time doctor to become or remain a partner. Many groups have a hard and fast rule that to be a practice owner, one must work on a full-time basis. Their rationale is that a less than full-time doctor is not as committed to the practice.

Other practices are more flexible in their approach and are willing to have partners who were part-time. They believe this makes it easier to have and retain good people.

There is no one approach that works for everyone. The key is to discuss things openly and honestly to arrive at a reasonable arrangement.

Vasilios J. Kalogredis

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Fall 02

HIPAA ALERT

As you are probably already aware, the Health Insurance Portability and Accountability Act ("HIPAA") will impact nearly every health care provider as to how that it processes electronic health care transactions as well as the manner in which it deals with the privacy and security of the protected health information of its patients. Several deadlines are upcoming that must be met with regard to compliance with the various rules and regulations of HIPAA. The Department of Health and Human Services ("HHS") will require any covered entity to comply with its regulations on electronic transactions and code sets on October 16, 2002 unless it has filed an extension request with HHS by October 16, 2002 for a one-year extension to the compliance deadline (October 16, 2003). The Centers for Medicare and Medicaid Services ("CMS") offers the option to submit the extension request electronically. This form can be found at www.cms.gov/hipaa/hipaa2/ASCAForm.asp.

HHS urges all covered entities who intend to submit this request for an extension to do so electronically at the website. By doing so, you will receive a confirmation number (which we urge you to get and keep) that you will not obtain if you simply mail the form to HHS directly. As such, we would recommend that, when requesting an extension, you do so electronically at the aforementioned website.

Please note that, as this Newsletter was going to press, HHS issued final modifications to the standards for the privacy of individually identifiable health information. Providers have until April 14, 2003 to comply with the patient privacy rule. The Office for Civil Rights of HHS plans to offer outreach and education to those affected by the privacy regulation, which will include technical assistance materials (such as fact sheets, handbooks and other materials), responses to frequently asked questions and national educational conferences. Of course, if you have any questions with regard to the requirements of the HIPAA rules on electronic transactions and code sets or the HIPAA privacy rules, please do not hesitate to contact us.

Michael R. Burke

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EXAMINING THE PRE-DISPUTE ARBITRATION CLAUSE

Many of us concentrate on the financial terms of an agreement but fail to consider what will happen if the other party breaches the agreement. Arbitration is considered private, quicker than litigating in court and, theoretically, less expensive than litigating in court. If, however, one of the parties breaches the agreement containing a pre-termination arbitration clause, the clause may greatly restrict the ability of the party who is seeking remedies for the breach to obtain relief.

The Enforceability of Arbitration Provisions

In order for an arbitration clause to be enforceable, it must be a clear and unmistakable agreement compelling arbitration of various issues. If the clause is not crafted carefully, instead of saving the parties’ money and time, the poor draftsmanship may end up in arguments, requiring court resolution, over whether or not arbitration can be compelled.

The use of arbitration provisions can be part of a litigation strategy imposed by those insisting on arbitration provisions. To insure against later challenges to the arbitration provision, you should: (1) make sure that the language requiring arbitration is conspicuous; (2) make sure that the expenses involved in accessing the arbitration process are not prohibitively expensive for those with fewer resources and an inferior bargaining position; (3) obtain the representation that the arbitration provision is not unreasonably favorable to the party with superior bargaining power; and (4) make it clear that the arbitration decision is final and binding and that the parties are giving up their right to go into court.

Consider the Type of Arbitration

Private companies that offer arbitration services have prospered. The American Health Lawyers Association ("AHLA") is one organization that provides qualified arbitrators to hear disputes in the health care field. If you are ready to sign an arbitration clause that permits arbitration under AHLA arbitration/mediation rules, you should understand what the rules permit. You may want to consider how many arbitrators should be involved in an arbitration process. You should consider having the arbitrator agree to disclose all potential conflicts of interest. You may want the parties to supply the arbitrator with the names of all material witnesses, including expert witnesses, and attorneys in order to make sure that the arbitrator who is selected does not have a potential conflict of interest with any of them.

Venue Selection Clause

If you are agreeing to arbitration, you might want to make sure that it takes place in a location that is convenient for you. Unless the forum is so gravely difficult and inconvenient that the party will be deprived of his or her day in court, the courts will enforce the choice of venue that is set forth in the contract. The difference between the usual and customary fee charged by lawyers in, for example, New York City, may be a great deal more than for a lawyer in Philadelphia and the venue for the arbitration can significantly alter the expenses and convenience for one of the parties.

Adequate Preparation for the Arbitration

There are situations where the inability to obtain documents from one’s adversary will make it impossible to prove the elements of one’s case. To adequately prepare for the prosecution of an arbitration, you should consider the following items before signing the arbitration provision: (1) whether or not discovery is permitted under the rules of the arbitration company that is selected; (2) you might wish to agree in advance for broad discovery in the event that an amount in controversy exceeds a certain amount of money; and (3) you may want to agree to a discovery period that is limited to a time period (e.g., ninety (90) days). The arbitration clause you sign may also establish whether the arbitrator will use the rules of evidence; whether or not the arbitrator will decide dispositive motions; and whether or not the arbitrator will have the power to set limits for conducting discovery, scheduling the hearing and issuing a decision.

The Arbitration Award

In order for an arbitration award to be enforceable, it must be in writing. Historically, arbitrators have issued only the briefest form of a decision. The request for a reasoned opinion increases both the time for issuance of a decision and the fees. It also provides the losing party with a better opportunity to attack the award. An award can be vacated in Pennsylvania only under exceptional circumstances. It may only be set aside if it is shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award. If the arbitrator makes a mistake of law or a mistake of fact, these issues are not reviewable.

In conclusion, the use of arbitration provisions can be a trap for the unwary. While the concept of arbitration may sound user friendly, informal and inexpensive, the use of an arbitration provision may greatly disadvantage the party who is injured by the conduct of the organization that has insisted on using the arbitration and has carefully crafted the arbitration provision to limit the damages for which that party will be responsible in the event of a breach.

David R. Dearden

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IN LIGHT OF THE CHANGING HEALTH CARE ENVIRONMENT, IT IS TIME TO REVIEW AND UPDATE YOUR GROUP PRACTICE ARRANGEMENTS

There are a lot of changes going on in medicine today.

Too often, we find that the legal documentation has not kept pace with the economic realities. This often results in outdated contracts which do not really fit with what the doctors involved would agree are fair terms today. Unfortunately, too often, busy doctors do not focus on their existing contracts and only realize that there might be problems when it is too late and they must live by the terms of the existing contracts, even if old. This is one major reason why we strongly recommend to our clients that they review and clearly understand what their Agreements are saying on an at least annual basis. Let me focus on a few of those key points.

In the mid-1990s, practice values were high. Hospitals and other large organizations were out there buying out and/or offering large sums of money to acquire good medical practices. In today’s climate, that is not happening, greatly depressing the value of those practices. That is more than enough reason to have all group practices look critically at their current undertakings and talk openly and honestly about whether they are still "real" in today’s economic circumstances.

Another important part of group practice contracts relates to malpractice insurance. It was not that long ago that most doctors had occurrence coverage. Such coverage did not require the need for a "tail" premium at the end. Also, the annual premium rates were substantially lower than they are today. In light of that, it is important to discuss who should be responsible for any malpractice insurance tail premium upon the departure of a doctor or doctors from the group. If each doctor is to be personally responsible for it, the contract should say so. If the practice is to be responsible, the contract should say so. If the practice is to be responsible, it is also important to have the documents clearly explain what will happen to this tail insurance premium obligation from an accounting standpoint, when valuing the practice as of the date of departure of a particular doctor. For example, if there are three doctors in a group and doctor number three leaves in a situation where the practice is to pay his/her $100,000 tail premium, it is important to make very clear within the documentation whether or not this tail premium is fully charged against any other entitlement that the departing doctor may have, vis-à-vis the practice, or whether it should be deemed to be a liability of the practice as of that date that would be "shared" by all of the owner doctors at that time.

Also, many groups divide net income in a way which allocates certain expenses directly against each individual physician. In the past, this might have been limited to items such as retirement plan contributions, entertainment and promotion, meeting expenses, automobile expenses, disability insurance, and the like. Formerly, groups often would not "sidesheet" malpractice insurance premiums, since they were often equal or near equal among the doctors in the group. However, that is often no longer the case, since we see many groups where some doctors have substantially larger annual premiums because of past history, subspecialty, and the like. This has caused many groups to decide that it is most fair to begin to "sidesheet" the malpractice insurance premium, per doctor. This obviously can have a major impact on the net income entitlements of each doctor in a group. If that is something that a group wants, the doctors need to discuss things, come to an agreement and then effectuate things by updating the documentation.

Many Buy-Sell Agreements state that upon the departure of a doctor, the practice and/or remaining doctors must purchase the departing doctor’s interest in the practice on a preset, formula basis. In today’s trying times, if that is all that the documents say, one could get into a "last man’s club" situation whereby the last doctor standing has many financial obligations to all of the doctors who have left. Unfortunately, that can be a real issue in today’s climate. Therefore, it is very important to look at one’s documents and see whether or not there are personal guarantees involved (which may or not still be what the group wants). Also, some Agreements call for alternative liquidation if all of the parties agree, within a certain amount of time after which notice of the departure by a doctor is given, that the entity shall be fully and completely liquidated. Oftentimes, in fairness to the departing doctor, we include language that this alternative liquidation will only free the remaining doctor or doctors from liability for the acquisition if they do not practice within a certain geographic area of the existing practice.

Some groups may be willing to attempt to pay the buy-out prices set forth in their documents, but want to protect themselves in the event of a potential "disaster" financially. Many Agreements now call for certain buy-out caps tied to a percentage of gross collections of the practice or to state that the remaining doctor or doctors would not drop below a certain percentage of their pre-separation compensation, in order to balance the risk between the departing doctor and the remaining one(s).

In closing, it is important that at least at one’s annual business meeting, these issues be openly addressed and whatever is agreed to be effectuated in the documentation.

Vasilios J. Kalogredis

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DOES GOODWILL STILL EXIST?

Although outright sales of medical practices, especially in the Greater Philadelphia area, are becoming rare, associates are still typically working two years and then becoming partners. In negotiating buy-ins, I have been asked on numerous occasions, is there still a goodwill value to the practice? In most cases, the answer is yes, but lower than in the past. Of course, you still have the tangible assets (equipment, furniture and supplies) and accounts receivable to buy-in to, but the extent of a goodwill buy-in depends on many factors which I will discuss below. But in general, the trend is downward in terms of a reasonable percentage of gross collections to use for a fair goodwill value. In the early-to-mid 1990s, some practices were selling for as high as 100% of gross, especially where the buyer was a hospital or health system. In today's world, in a buy-in situation, goodwill can be as low as zero and rarely goes above or even reaches 50% of gross collections. A 30-35% goodwill factor is not unusual. Of course, if the buy-in is not tied to specific values for the receivables and goodwill but rather is expressed by means of an increasing percentage of a full net income share (e.g., 60%, 70%, 80%, 90% of equal over 4 years), the percentages may simply be increased sooner (e.g., 75%, 85%, 95% over 3 years). This downward trend is due to several factors. Reimbursements in the Philadelphia area have been constantly going down or staying level, mostly due to the fact that only two major insurance companies are in the area. Overhead expenses typically increase each year due to inflation, staff salary increases, the skyrocketing cost of health insurance premiums and the exorbitant increase in malpractice insurance premiums. In fact, some orthopedic surgeons, neurosurgeons and obstetricians cannot even obtain malpractice insurance and have had to leave the state or stop doing surgery to survive economically.

In addition, in some subspecialties the supply of doctors is much smaller than the demand. For example, we have gastroenterology, cardiology and dermatology clients who have offered high starting salaries and reduced their typical goodwill buy-ins in order to attract and keep good doctors. However, another doctor may have bought-in a few years ago at a high goodwill price and wants to benefit financially from the new partner in the same manner. This may make it difficult to change the buy-in terms.

The bottom line is that each practice buy-in arrangement must be examined on its own merits and not necessarily compared to a friend's deal. Most buy-ins still will have a goodwill factor, but it typically will be lower than in past years. Reasonable projections should be done to determine what the new partner's take-home pay will be, net of the accounts receivable and goodwill buy-in, to see if the deal makes sense. In most practices, the goodwill portion of the buy-in should not be so high that the new partner takes home less than he or she did as a "last year" associate.

Jeffrey B. Sansweet

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RESPONDING TO A MEDICARE OVERPAYMENT REQUEST

Receiving a notice in the mail from your local Medicare carrier requesting the return of an alleged overpayment is not a welcome prospect. This article will focus on practical tips to help you respond to the most common overpayment request that we have seen in our practice, which is the request for return of alleged overpayments with the opportunity for a consent settlement. In many instances, Medicare carriers assess overpayments in terms of both the actual overpayment derived from the sample of claims reviewed and a projected overpayment that is extrapolated from the sample to all similar claims in the universe of claims under review. Usually, the assessment of actual overpayments and potential overpayments are based on a sample size that is not "statistically valid". This means that the sample size examined was not large enough to make a "statistically valid" projection of potential overpayments.

Carriers often use an offer of a consent settlement in their request for return of an alleged overpayment as a way of handling the overpayment return matter. The consent settlement letter and offering documents must contain a complete explanation of the review of the provider's billing and the findings of such review, as well as an explanation of the settlement process and the rights that a provider waives by accepting a consent settlement. A consent settlement letter describes the three options that are available to the provider:

1. The provider has the option to refund the entire projected overpayment amount without submitting additional documentation, as well as waiving any and all rights to appeal the determinations made on the sample cases on which the projected overpayment was based. This settlement option limits the ability of the carrier to audit the provider's claims for the procedure codes reviewed during the time frame within which claims were reviewed (unless fraud is uncovered).

2. The provider has a second option in which it agrees to accept the alleged projected overpayment as the cap on the amount of the overpayments that would have to be refunded by provider. However, the provider is permitted to submit additional documentation and justifications to demonstrate that any and/or all of the determinations made by Medicare are not correct. Acceptance of this option also waives any and all appeal rights that the provider has to appeal the determinations made by the carrier. This settlement option also limits the ability of the carrier to audit the provider's claims for the procedure codes reviewed during the audit time frame (unless fraud is uncovered). When a provider selects the option of capping the potential overpayment but submitting additional documentation, he or she is permitted to request a meeting (which often may be done over the telephone) to explain the additional documentation and provide other information relative to the determination.

3. A provider has a third option to reject the settlement offer and proceed to a statistically valid random sample for a determination of the actual overpayment. In this option, the provider does not waive any of its appeal rights. Failure to respond to the overpayment demand letter also serves as an automatic selection of this third option.

The following sets forth some practical tips to consider when you receive an overpayment request that contains a consent settlement option:

· The provider should pull the patient charts for which the overpayment request was made and review the documentation for the problems noted in the overpayment demand letter. We have had clients determine that the carrier's review was correct in many instances and elected not to dispute the assertions made by Medicare and instead returned the alleged overpayment. In these instances, the provider felt that it was not worth incurring the expense of disputing the claims at issue.

· Where the provider does not agree with the determinations made by the carrier after reviewing its charts, it may be useful to engage a consultant to review the claims examined by Medicare to determine whether or not the consultant is in agreement with these claims. The consultant should have an expertise in Medicare coding issues. In addition, we would suggest that the consultant be engaged by an attorney in order to maximize the potential that the results of such a review will be protected by the attorney-client privilege.

· It is important for the provider (with the assistance of its attorney or consultant, as needed) to put together the additional information that it is sending to Medicare in a clearly organized fashion. It is helpful to express to the carrier when sending additional information the reasons why you disagree with the determination made by the reviewer. This is your best opportunity to change the carrier's mind, as we have found the "meeting" to be less helpful in this regard. We have had success with the carrier where they were able to easily review things due to the organized nature of the information presented and see the explanations for the issues that our clients were disputing.

· The carrier often will allow for a limited "meeting" in which you have the ability to present additional information or explain the additional information that you have provided to the carrier. This is the provider's opportunity to explain any issues to the carrier of which it believes the carrier is not aware. Please note that it does not help your cause to take a negative or combative tone during such a meeting, but maintaining a reasoned, organized approach will increase the odds that the carrier will better understand and accept your arguments.

· In most instances, it is not beneficial to request a statistically valid random sample. While the overpayment projection process does have its shortcomings (it is sometimes calculated incorrectly, and should be reviewed carefully), selecting a statistically valid random sample could open a Pandora's Box of problems with regard to the issues being reviewed and possibly other issues that arise during a statistically valid random sample audit. In most instances, a provider should select the option where they cap the potential overpayment at the projection made by the carrier and dispute some or all of the claims in an attempt to reduce that overpayment amount.

No provider ever wants to receive an overpayment demand letter. However, if you receive such a letter and approach your response to it in the foregoing manner, the process may not be as daunting as it may otherwise appear. If you have any questions with regard to this process or if you receive an overpayment demand letter, please do not hesitate to contact us.

Michael R. Burke

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Spring 02

UNDERSTANDING MEDICARE "INCIDENT TO" REIMBURSEMENT

The rules permitting physicians to be reimbursed by Medicare for services "incident to" their professional services are among the most misunderstood rules in the Medicare program. Revisions to the rules that took effect on January 1, 2002 make it an appropriate time to revisit the basics of "incident to" reimbursement.

"Incident to" services are services and supplies furnished as an integral, although incidental, part of a physician’s professional services in the course of diagnosis or treatment of an injury or illness. "Incident to" services are only reimbursed by Medicare if they meet certain defined requirements imposed by the Medicare program. These requirements are as follows: they must be an integral, although incidental, part of the physician’s professional service; they must be commonly rendered without charge or included in the physician’s bill; they must be of a type that is commonly furnished in physicians’ offices or clinics; they must be furnished under the physician’s direct personal supervision; and, they must be furnished by the physician or by an individual who is an employee, independent contractor or leased employee of the physician. In addition, there must be subsequent services by the physician of a frequency that reflects his or her continuing active participation in and management of the course of treatment of the patient. The "incident to" service must be incidental to a physician’s service. Therefore, a physician member of the practice must actually see the patient first before a subsequent service may be billed as an "incident to" service.

The provision of "incident to" services is not limited to physician’s assistants and nurse practitioners. Rather, medical assistants, nurses and other similar individuals may provide "incident to" services provided that the foregoing requirements are met. Note that a physician practice may bill for a service provided by a physician assistant or nurse practitioner directly (and not as "incident to" service) and receive 85% of the fee schedule amount for said service if the requirements related to such billing are satisfied.

Services and supplies commonly furnished in a physician’s office are covered under the "incident to" provision. If supplies are clearly of a type that the physician is not expected to have on hand in his or her office, or if services are of a type not considered medically appropriate when provided in the office setting, these services would not be covered under the "incident to" rules.

Direct supervision under the "incident to" rules requires the direct and personal supervision of the physician. This does not mean that the physician must be present in the same room with his or her assistant. However, the physician must be present in the office suite and immediately available to provide assistance and direction throughout the time that the aide is performing the services. This requirement is not satisfied by having the physician available by telephone or pager. In addition, "incident to" services are not covered when they are performed in the hospital on an inpatient or outpatient basis. When "incident to" services are provided in a patient’s home or an institution (such as a nursing facility), these services are only covered "incident to" a physician’s service

where there is direct personal supervision by the physician; presence of the physician "somewhere" in a nursing home but not in the room with the patient does not constitute direct personal supervision.

On January 1, 2002, Medicare changed its rules with regard to the nature of the relationship between a physician and the personnel providing "incident to" services. Prior to January 1, 2002, personnel providing "incident to" services had to be employees or leased employees of the physician or the physician group. Effective January 1, 2002, the employment requirement no longer exists, and personnel providing "incident to" services may be employees, leased employees or independent contractors of the practice.

Unfortunately, it is not difficult to run afoul of Medicare’s "incident to" billing rules. The requirements regarding direct personal supervision and having the physician provide the initial service are sometimes not met. Discovery of "incident to" billing irregularities in an audit could result in large overpayment determinations, or worse, false claims actions, if the billings were submitted with knowledge or reckless disregard of the rules.

If you have any questions with regard to Medicare’s "incident to" rules, plea