Jul 19 2018

Rebroadcast: Do You Know What Costco Pharmacy Doesn’t About the Lifetime Value of A Customer? – Podcast

Like a dry cleaner, healthcare providers have to screw up to lose a customer’s loyalty.

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Mark F. Weiss

www.advisorylawgroup.com

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Jul 18 2018

Franchising As A Healthcare Business Model – Medical Group Minute

When I was 17 I worked at a McDonald’s. The store was a franchise location.
Franchise models exist in medicine as well as in hamburgers. For example, in the urgent care center market.

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Mark F. Weiss

www.advisorylawgroup.com

Jul 17 2018

Protecting Your Unrecognized Intellectual Property – Success In Motion Series

Ride along with Mark as he discusses how you must uncover and protect your medical practice’s or healthcare business’s hidden intellectual property.

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Mark F. Weiss

www.advisorylawgroup.com

Jul 16 2018

Physician Opportunity: Hospital CFOs Freak Out Over Failed Business Model

It’s not quite like life imitating art, but it’s probably as close to it as I’m going to see today.

I just read a puff piece sponsored by Bank of America, pricey click bait for hospital CFOs, that supposedly features a roundtable “conversation” among (oxymoron warning) forward-looking hospital CFOs.

Apparently, these CFOs have just realized that even the largest and, supposedly, best run hospitals and health systems are suffering from financial distress. The hospital-centric business model is broken. Ya think? [Read The Impending Death of Hospitals, on Amazon or, as a complimentary download.]

Their suggestion, after more than a decade of spending billions of dollars acquiring and otherwise “aligning” physicians, and then, as an industry group, blocking physician investment in hospitals, is that hospitals push into the outpatient/ASC world. (Attention hospital CFOs: this is not “forward-looking.” It is still looking into the rearview mirror to explain why hospitals are in decline.)

The problem of course, is that when hospitals thought that the future of healthcare would be hospital-centric, they convinced physicians that they needed the hospital. However, in the world as it’s become and is becoming even more so, that is, the outpatient, ASC (and not hospital outpatient department) centric world, physicians don’t need hospitals as partners. Oops.

For physicians, the unfolding world of independent outpatient care offers tremendous opportunity. Yes, it’s riddled with compliance landmines (and sure, the hospital industry will lobby for more restrictions faster than they can charge $15 for a single Tylenol), but most can be overcome. And, if I have to reverse social justice brainwashing, there’s nothing wrong with profiting legally from your referrals and healthcare investments.

Choose your partners wisely. Find those who’ll work with you, support common goals, and not seek to control you. Document deals properly up front — the expense will pale in comparison to that of undoing a poorly designed deal or of the first few months of litigation.

And, if you actually need a hospital partner for a joint venture, let the hospital compete for the deal. (Tell them you’re considering sending out an RFP. They used that ridiculous process to beat physicians down, and maybe I was wrong about their uselessness: I never considered them as a way to have fun.)

And, one final, free piece of advice for hospital CFOs: You should “forward look” back to elementary school: The time to ask Billy for an invitation to his party wasn’t after you stole his lunch.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

www.advisorylawgroup.com

Jul 12 2018

Hospital Turns $1 Million Of Collections Into $24 Million Of Potential False Claims Act Liability – Podcast

Finders keepers, losers weepers.
Except in connection with overpayments by federal health care programs — then it’s a crime.

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Mark F. Weiss

www.advisorylawgroup.com

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Jul 11 2018

Should Non-Taxpaying Hospitals be Able to Gamble with Your Funds? – Medical Group Minute

Should non-taxpaying hospitals, the facilities that prefer to be known by the misnomer “not for profit,” be able to gamble their tax free funds on venture capital investments?

Well, they already are.

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Mark F. Weiss

www.advisorylawgroup.com

Jul 10 2018

HIPAA Security…Or Not! – Success In Motion

Ride along with Mark as he discusses HIPAA, naïveté, and why your digitized data probably isn’t as safe as you think it it.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

www.advisorylawgroup.com

Jul 09 2018

Physician Behind Bars For Referrals: Kickbacks, Bribes, and Mail Fraud

Physician, well, former physician, Bernard Greenspan is whiling away his time in federal prison in Butner, NC. He’s part way into his 41 month sentence in connection with the Biodiagnostic Laboratory Services, LLC (“BLS”) scam that, at my last count, resulted in the conviction of 43 defendants, 29 of them of doctors.

Greenspan, a family medicine doctor, was convicted of multiple crimes, including violation of the federal Anti-Kickback Statue, in connection with receiving bribes totaling approximately $200,000 from BLS, its employees and associates in return for the referral of blood samples worth approximately $3 million in billings to BLS.

Interestingly, and frightening for those physicians, and others, who misunderstand the AKS and its place in the pantheon of prosecutorial weapons, Greenspan received the money from BLS and its affiliates through rental, services, and consulting agreements that were apparently vetted for “compliance” with the AKS’s space rental and personal services safe harbor.

After all, Greenspan’s attorney argued that the doctor had entered into legal agreements for rent and services and that there was no evidence that he ever made referrals in exchange for remuneration. So, how could the payments be kickbacks?

What You Need To Know

1.  Fitting a deal within one of the AKS safe harbors is not, never was, and never will be a guaranty that you are immune from AKS prosecution, because the safe harbors do not protect sham arrangements. Accordingly, Greenspan was indicted and convicted of violating the AKS, also known as 42 U.S. Code § 1320a–7b.

Unfortunately, too many deals that facially fit within a safe harbor are “ass backward” arrangements designed to cover up illegal arrangements: Lab owner Joe tells Dr. Sally that he’ll give her a little “taste” if she sends some patients his way. Sally feigns horror, but sees no problem with Joe’s comeback: Joe’s cousin Lou will rent space from Sally for $X pursuant to a lease that meets all of the check-the-box requirements of the space rental safe harbor. That includes the fact that the rent will be within the range of FMV. Sally will send her patients’ blood samples to Joe’s lab.

Like the old expression goes, you can put lipstick on a pig, but it’s still a pig. The lease was just the lipstick. The acceptance of $X, even if it is fair market value, was the pig, the crime.

2.  Even if compliance with a safe harbor is legit, compliance with it protects you from AKS prosecution only. There are many other laws that prohibit much of the same conduct and to which the AKS safe harbors have absolutely no relevance.

For example, in addition to the AKS violation, Dr. Greenspan was also indicted for, and found guilty of, violating:

  • 18 U.S. Code § 371 – Conspiracy to commit offense or to defraud United States: The conspiracy with BLS and its owners and managers to defraud Medicare.
  • 18 U.S. Code § 1343 – Fraud by wire, radio, or television: The Medicare payments sent by interstate bank wire (the electronic payments from the Medicare contractor to BLS’s bank account).
  • 18 U.S. Code § 1952 – Interstate and foreign travel or transportation in aid of racketeering enterprises (the “Travel Act”): Both (a) the payments by the Medicare contractor to BLS’s bank account by bank wire, and (b) the fact that the payments constituted commercial bribery under New Jersey state law, thus triggering violation of this federal law. (See my article Why Your Compliance Efforts May Be Worthless.)

3.  I’ve written many times that those you work with are potential witnesses against you. For example, people often turn employees into whistleblowers in respect of civil prosecution for violation of the False Claims Act.

As anyone who watches crime story movies or TV shows should know, the same situation, but on steroids, plays out in respect of criminal prosecution: Other participants in the scheme flip on you to reduce their charges or punishment.

In the case of Dr. Greenspan, the two brothers at the center of the BLS scheme, the company’s president, David Nicolls, and Scott Nicolls, testified that they entered into a conspiracy with Greenspan to get the blood samples in exchange for kickbacks.

What You Must Do

Every new, and every existing, financial relationship with anyone or any entity with which physicians and other healthcare providers do business must be vetted or re-vetted in light of today’s enforcement reality. Immediately. If they’re violative, they must be unwound.

As to Dr. Greenspan, at 80 years old, it’s conceivable that he’ll spend the rest of his life behind bars.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

www.advisorylawgroup.com

Jul 05 2018

What’s The Downside Risk for Hospital Executives? – Podcast

As you know, it’s hard to make a decision when you might have to pay a large price for it. It’s much easier to make decisions when there’s only an upside, that is, when there’s an upside if it succeeds and an upside if it fails.

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Mark F. Weiss

www.advisorylawgroup.com

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Jul 04 2018

Will Your Copier or Medical Equipment Become a Whistleblower? – Medical Group Minute

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.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

www.advisorylawgroup.com