ACC Quik Hit. Roger Strode Foley-Chicago, IL. April 5, 2016

Transcription

1 ACC Quik Hit Roger Strode Foley-Chicago, IL April 5, 2016 Attorney Advertising Prior results do not guarantee a similar outcome Models used are not clients but may be representative of clients 321 N. Clark Street, Suite 2800, Chicago, IL

2 Agenda Due Diligence Antitrust Pressure Physician Transaction Update

3 Corporate Practice of Medicine New York state settlement with Aspen Dental Management Many states have some form of CPOM concept and fee-splitting prohibitions Friendly PC structures are commonly used in the acquisition of medical/dental/professional health care practices by for profit managers/consolidators of those businesses (e.g., P/E backed firms) Significant risks can arise when a non-professional vendor is engaged to manage or consult a licensed professional or an entity comprised of licensed professionals. New York State AG alleged that ADMI did not simply provide business support and administrative services but subjected its managed dental practices to extensive undue control

4 Corporate Practice of Medicine AG determined that Practices were individually owned in name only, and ADMI was acting effectively as a de facto owner Management fee captured a percentage of the practices revenue, ADMI exercised control over bank accounts, advertising and marketing practices, decisions involving patient care and treatment plans, and clinical staff employment matters Significant fine paid and restrictions agreed to by ADMI

5 Corporate Practice of Medicine Who is really in control of the practice, not just in control of clinical decision making? How are management fees determined? Are they consistent with FMV? Can the manager unilaterally discipline/fire licensed professionals? What do the non-competes look like? What impact does a loosening of control/ restrictions and renegotiation of management fees have on purchase price?

6 Anti-Referral Issues Violations of Physician Anti-Referral laws (Stark) remain a significant concern OIG Fraud Alert (June 2015) Emphasized the need for FMV payments to MDs for bona fide services Problematic arrangements include (i) those above FMV, (ii) compensation that takes into account v/v of referrals, (iii) MDs failing to provide contracted services and (iv) affiliated health care entity paying for physician office staff Shot across the bow to physicians who sometimes believe they won t be targeted for abusive situations

7 Anti-Referral Issues Physician compensation, particularly stacking of compensation that leads to high aggregate compensation amounts Focus on FMV, including the selection of benchmarks and the quality of reports Focus on the accuracy, reliability and completeness of information provided to advisors Questioning of commercial reasonableness of compensation arrangements when reasons for the arrangement are not well documented

8 Anti-Referral Issues Hospital losses or failure to make a profit construed as evidence of non-fair market value, non-commercially reasonable compensation Tracking of hospital referrals and contribution margins construed as evidence of illegal behavior

9 Anti-Referral Issues North Broward Settlement $69MM settlement for FCA and Stark law violations (including a 5 year CIA) FCA brought by a physician who chose not to accept employment but alleged that NB employed doctors were being overcompensated (giving NB a competitive advantage) NB maintained contribution margin reports referencing ancillary revenue generated by the 9 physicians at issue Physician practices operated at a loss, thus raising the question of commercial reasonableness Certain MDs paid in excess of MGMA 90 th percentile Compensation models were a mix of guarantees and production based

10 Anti-Referral Issues Adventist Settlement $115MM to settle Stark law and Medicare coding claims Allegations same as Broward and related to 85 physicians, many of whom made at least a $1MM annually, and a few up to $3MM (most well above MGMA 90 th percentile) Doctors also received percentages of ancillaries Allegations that it was humanly impossible for most of the doctors to work hard enough to earn their salaries on a production model Adventist lost scads of money on these practices In practice, physicians deviated from contracts Evidence of a great number of other non-cash perqs were made available to the physicians, including free leases of BMWs

11 Anti-Referral Issues Employment Safe Harbor (AKS) is not bullet proof and doesn t give you cover under the Stark Law If you have high compensation relative to MGMA percentiles, have good documentation to support the compensation Watch use of internal reports, related to physician use/referral to ancillaries regulators will use it to connect the dots If you lose money on physician practices, have rationale and a story Don t pay for physician use of BMWs

12 Anti-Referral Issues Adventist Settlement $115MM to settle Stark law and Medicare coding claims Allegations same as Broward and related to 85 physicians, many of whom made at least a $1MM annually, and a few up to $3MM (most well above MGMA 90 th percentile) Doctors also received percentages of ancillaries Allegations that it was humanly impossible for most of the doctors to work hard enough to earn their salaries on a production model Adventist lost scads of money on these practices In practice, physicians deviated from contracts Evidence of a great number of other non-cash perqs were made available to the physicians, including free leases of BMWs

13 Finalization of 60-Day Overpayment Rule Statute set the 60-day rule stating that the overpayment must be reported and returned by the later of: the date which is 60 days after the date on which the overpayment was identified, or the date any corresponding cost report is due, if applicable By statute, overpayments retained after the deadline for reporting and returning an overpayment become an obligation under the Federal False Claims Act, subject to treble damages and per claim penalties

14 Finalization of 60-Day Overpayment Rule Does the target have an overpayment policy? What are the target s document retention policies? Evaluate processes for conducting internal investigations Evaluate overpayment training

15 Other Areas of Concern Pressure on multiples and purchase price Hospitals being pressed to meet purchase price multiples offered by private equity and other for-profit entities Physicians refer to hospitals post closing Physician billing and coding Improper use of modifiers Improper billing of physician extenders ( incident to billing) Billing when charting is incomplete

16 Health Care Antitrust Update The FTC and DOJ have become significant partners in health care transactions in recent years Emboldened by wins enforcement activity has been aggressive Agency attention has applied to both (HSR) reportable and non-reportable transactions Advocate-North Shore Merger (Chicago-Metro) St. Luke s (Boise)

17 Deal Term Updates Due diligence continues to be critical to most deals getting done We are seeing a heavy emphasis on diligence matters Often due to the fact that buyers are taking assignment of provider numbers In certain situations, agreements to self disclose prior to closing, or immediately after closing, are common Valuations appear robust Not unusual to see 9-12x (sometimes greater) multiples on TTM EBITDA for platform companies in the private equity space There is a lot of pressure on hospital systems to try and meet these multiples due to competition from for-profit buyers

18 Deal Term Updates Escrows of 10%-15% of transaction value not uncommon Seeing some reduction of escrows when R&W insurance is used Beware of carve outs for certain issues, such as health care compliance reps and warranties Sellers should be prepared for a second round of diligence from counsel

19 Deal Term Updates Survival Periods (R&W) General: months Fundamental: Unlimited Taxes/Benefits: SOL days Health Care: SOL = days or 3-5 years (depending upon negotiations) Caps Can be lowered through use of R&W insurance (as low as 5% of transaction value in some cases) No cap, generally, on breaches of covenants or breaches of fundamental R&W Higher caps, generally, on breaches of health care R&W Baskets

20 QUESTIONS? Roger Strode Foley & Lardner, LLP (D) (M)