Feb 01 2018

Will Your Copier Or Medical Equipment Become A Whistleblower? – Podcast

Modern office machines, from copiers to printers to maybe even label makers have memory devices, and those devices may be chock full of protected health information.

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Mark F. Weiss

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Jan 31 2018

Have You Made This Mistake Concerning Your Medical Practice? – Medical Group Minute

Preserve your medical group’s security and avoid lockouts and disasters when negotiating your contracts.

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Mark F. Weiss

Jan 30 2018

Lonely Hospital Seeks Longterm Relationship – Success In Motion Series

Ride along with Mark as he talks about the hospital that can’t keep an owner.

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Mark F. Weiss

Jan 29 2018

What A Tennessee Lawsuit Teaches You About Protecting Your Medical Group’s Business

You can’t build a bigger future for your medical group’s business if all you do is play is defense. You have to play offense, too: you must take affirmative steps to grow your business. But just the same, the failure to play defense can be fatal.

There’s a lesson in defense to be learned from the undercurrent of a lawsuit now playing out in Tennessee, in which the second largest hospital chain in the U.S., Community Health Systems (“CHS”) is suing Brian Bauer, the (fired) former CEO of its Fort Wayne, Indiana based Lutheran Health Network, seeking to prevent him from working with IU Health, a competitor in the Fort Wayne market. Following his firing by CHS, Bauer joined IU Health as CEO of its Fort Wayne unit.

Among the allegations are that Bauer, who apparently was not bound to any covenant not to compete, shared confidential and proprietary information with IU Health. CHS claims that sharing that information violates the terms of a CHS stock option agreement once in favor of Bauer. They also claim that Bauer violated the terms of that agreement’s non-disparagement clause.

Most interesting for our purposes is the fact that CHS is seeking an injunction preventing Bauer from engaging in any role with IU Health because Bauer inevitably could or would disclose or use CHS’ confidential or proprietary information.

According to an article in the Fort Wayne News-Sentinel, Bauer contends, among other things, that CHS’ lawsuit is “an attempt to sabotage that business relationship (between Bauer and IU Health) and curtail any potential competition.”

Last week, the trial court judge denied Bauer’s motion to dismiss the lawsuit. The case is now moving forward, with CHS’ motion for a temporary injunction to be heard soon. If granted, the temporary injunction could effectively be a knock-out blow to Bauer, as he’d be sidelined, unable to work for IU Health (and, potentially for any other competitor) for the months, if not years, until the final outcome of the case.

What you need to know for your own business purposes:

1. Covenants not to compete are creatures of state law. Some states favor their enforcement, others disfavor them, and still others don’t much like them but will still enforce reasonable restrictions.

2. In states that allow enforcement of covenants not compete, consider their use in your agreements with key players. Carefully draft them to increase the odds of enforcement. In some states, Texas for example, physician covenants not to compete are enforceable only if they comply with highly technical requirements.

3. In any state, even if it favors the enforcement of covenants not to compete and you use them in your agreements, consider the use of other key anti-competitive restrictions. There are many available strategies, both in terms of the way that agreements are structured within your entity, between your entity and its team members, and between your entity and third parties. For example, note that CHS’ alleged restrictions appear in a stock option agreement, not the typical place where they’d be found, and one in which, I’d assume, eyes get glassy with dancing dollar signs.

4. The use of litigation as a tool to project power is a fact of life. Don’t assume that trite sayings such as “speak truth to power” have much value other than as bumper stickers or motivational posters.

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Mark F. Weiss

www.advisorylawgroup.com

 

Jan 25 2018

The Cancer of Consensus – Podcast

Leaders must lead. They cannot bog themselves down in the morass of consensus building.

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Mark F. Weiss

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Jan 24 2018

Fined For Actual and Potential HIPPA Violations – Medical Group Minute

HIPPA violations are about one thing – the government collecting.

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Mark F. Weiss

Jan 23 2018

Swerving Into The Kickback Lane – Success In Motion Series

Kickback problems are like approaching traffic. Swerving to avoid them might lead you right into their path.

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Mark F. Weiss

Jan 22 2018

Hospital Becomes Hole In Ground. ASC Takes Up The Slack.

In what might seem to some like ancient history and to others as a clarion call, in June 2010, New York City’s approximately 400 bed, 160 year old St. Vincent hospital, the last Roman Catholic general hospital in the city, closed its doors for the last time.

In late 2017, a competing non-profit opened the modern variant of a replacement “hospital” right across the street: a 6 O.R. ambulatory surgery center located in a facility with an emergency department, an imaging facility, physician offices, and other healthcare services.

Other than in respect of the freestanding emergency room, which, depending on state law may or may not be possible to license (or even wanted), there’s nothing in the concept of the replacement facility that couldn’t be created by you as a physician-led, physician-owned, for profit venture. In fact, it’s exactly along the lines of what I’ve termed a Massive Outpatient Center™:  A combination of an ASC, a medical office building, and one or more of a menu of complementary offerings.

For some, thinking becomes ossified along historic lines: “Hospitals build hospitals.” “Physicians just practice medicine.” “Physicians can’t own hospitals.” But none of these is necessarily true.  But, even if they were, opportunity is more malleable. What’s functionally like a hospital need not be a hospital.

If I were wrong about this, St. Vincent’s would be celebrating its 168th anniversary. It’s not. A 200-unit condo complex stands in its place.

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Mark F. Weiss

www.advisorylawgroup.com

 

Jan 18 2018

Drugs, Sentencing and Lock (and Roll on to Another Kickback Prosecution) – Podcast

The federal Anti-Kickback statute makes it illegal to receive anything of value for the referral of federal health care program patients. How are you managing this potential pitfall?

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Mark F. Weiss

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Jan 17 2018

Transparency Within Medical Groups – Medical Group Minute

How much transparency should exist within your group?

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Mark F. Weiss