Kilpatrick Townsend offers clients the advantages of both a concentrated practice in health care law and a business firm with broad and varied areas of experience. Our Health Care practice enjoys an outstanding reputation for its knowledge in health law and its leadership in the health law community. Our strength lies in the ability to understand and keep pace with the numerous changes in the health care industry and to work creatively with clients to achieve workable solutions.
We offer a comprehensive approach with many inherent advantages. Because we are familiar with how health care is delivered and financed, we can respond quickly to the business and financial needs of our health care clients and to the practical realities they face.
Our health care practice includes service to the full range of health care providers and practitioners, including hospitals; academic medical centers; physicians; physician organizations; provider associations; health maintenance organizations and other managed care providers; dentists; home health agencies and providers; nursing facilities; rehabilitation facilities; retirement and continuing care communities; intermediate care facilities; cancer treatment centers; providers of psychiatric and chemical-dependency services; ambulatory surgery and other outpatient services; health industry consultants; lithotripsy services; mobile cardiac catheterization services; manufacturers and providers of medical equipment; and providers and developers of new medical technology services, such as electronic health information systems, teleradiology, interactive video-consultations, and computer-based patient records.
Kilpatrick Townsend's experience encompasses a wide range of matters of concern to the health care industry, including:
- Business Transactions
Our broad range of experience in business transactions is employed regularly in advising clients in the health care industry. We assist with business planning; organization; mergers and acquisitions, with particular emphasis on representing physicians and physician practice groups in affiliations with physician practice management companies; transactions in the home health sector; and physician practice mergers. Our experience also extends into the area of securities, where we represent providers in the health care industry in initial public offerings, registered transactions, exempt transactions, and other matters requiring compliance with federal and state securities laws.
- Integrated Delivery Systems
Kilpatrick Townsend has pioneered the development of new forms of successful health care delivery systems. We assist in establishing physician-hospital organizations, individual practice associations, management services organizations, jointly owned health maintenance organizations, and other health care delivery models involving physician-hospital or physician-physician integration. We also assist in the formation of national, regional, and local provider networks, including primary care networks and specialty networks in the fields of orthopedics, obstetrics, cardiology, psychiatry, radiology, pathology, podiatry, home care, rehabilitation therapy, and dermatology. We advise medical practices in the formation of both multi-specialty and single-specialty group practices and clinics without walls. Our advice is supported by our attorneys’ in-depth knowledge of billing requirements, physician self-referral prohibitions, antitrust issues, tax issues, and other legal regulations.
We prepare and review hospital and physician contracts of all kinds to accomplish specific business goals. These contracts include employment contracts, shareholder agreements, professional services agreements, management contracts, participation agreements, software licenses, and equipment purchase and lease agreements. We are fully familiar with permissible physician recruitment activities, including the use of income guarantees, loans, and office rental arrangements, and have represented providers in governmental investigations of contracts involving recruiting incentives. We provide advice concerning the implications for contracts of the fraud and abuse laws, Stark legislation, state law restrictions, and tax consequences, and we work with the parties to the contract to achieve desired goals within legal boundaries.
- Managed Care Relationships
We provide creative legal solutions for providers and managed care companies as they analyze and develop managed care contracts, seek and maintain licensure, seek regulatory approvals for creative compensation methods, establish long-term risk provider/managed care relationships, and contract with self-funded employers. In particular, our attorneys have experience with the development, interpretation and application of the unique managed care laws and regulations enforced by state departments of insurance. We assist with licensure and certifications required of various managed care entities (HMOs, preferred provider organizations, third party administrators and utilization review organizations) and have excellent working relationships with state agencies regulating health insurance and national medical boards. We provide counsel in contract negotiations and the resolution of disputes among third party payors, patients, and providers (including through litigation, arbitration, and mediation).
- Health Care Provider Financing
We counsel clients in all forms of health care finance, ranging from county bond packages for local hospitals to senior debt and capital markets transactions for larger public and private institutions. We represent both lenders and borrowers, which gives our attorneys the advantage of understanding both sides of the negotiations. In addition to our health care attorneys, Kilpatrick Townsend can utilize attorneys from all other legal disciplines necessary for a complete financing team, including real estate, environmental, securities, and mergers and acquisitions.
- Restructuring and Reorganization
We provide comprehensive legal assistance regarding the restructuring of public and private hospitals, converting public hospitals to private status, corporate reorganization, and various forms of joint ventures.
- Tax Advice for Tax-Exempt and For-Profit Entities
We offer a full range of federal and state tax analysis and advice, including advice relating to obtaining and maintaining tax-exempt status, including analysis of arrangements under private-inurement and private-benefit standards; obtaining determination letters and private-letter rulings from the National Office of the Internal Revenue Service concerning tax-exempt status and other issues; advice to tax-exempt organizations concerning compensation of physicians and other physician-recruitment activities; and the participation of tax-exempt entities in joint ventures and integrated health care delivery systems. We also provide counsel on tax-exempt financing of new health care facilities and equipment under state laws. In addition, we provide general tax advice to for-profit entities, including professional corporations and their physician shareholders, limited liability companies, and partnerships, on such matters as mergers and acquisitions and tax-reporting issues.
We have a diverse antitrust practice involving mergers and acquisitions, criminal and civil antitrust litigation and counseling, including antitrust compliance and audits. We regularly deal with federal and state antitrust regulators in responding to civil investigative demands, requesting business review letters and advisory opinions and coordinating Hart-Scott-Rodino pre-merger notification filings.
- Fraud and Abuse
In today’s complex regulatory environment, the federal and state fraud and abuse laws can significantly affect the structure and operations of any business with any connection to a health care provider or product. We proactively assist clients in understanding and appreciating the significance of these laws. We assist in preparing and implementing corporate compliance plans for hospitals, physician groups, home health providers, durable medical equipment suppliers, and other health care providers. These compliance plans are designed to satisfy the requirements of the Federal Sentencing Guidelines, are specifically tailored to each client's needs and situation, and include a complete survey of the client's current operations, detection of problems, plans for correction, education, and implementation of a code of conduct and ethical standards. We also help clients structure business transactions in a manner that anticipates the implications of the federal and state fraud and abuse laws, including the Medicare/Medicaid anti-kickback statute and safe harbor regulations, the "Stark" legislation and its exceptions, and related state self-referral laws. We assist and represent providers in state and federal legislative matters involving fraud and abuse, and when providers are accused of violating the fraud and abuse laws, we provide civil and criminal defense representation in such matters as compliance with subpoenas and search warrants, grand jury investigations, and trials.
- Medicare, Medicaid, and Third Party Reimbursement
We provide legal advice concerning Medicare and Medicaid requirements and reimbursement issues. We represent providers in Medicare and Medicaid actions before federal and state administrative bodies, such as the federal Department of Health and Human Services, the Centers for Medicare and Medicaid Services, fiscal intermediaries, and the Provider Reimbursement Review Board; in state Medicaid hearings; and in judicial challenges to administrative decisions. In connection with audits, investigations, and recoupment demands involving other third party payors, we protect our clients' interest through internal appeals, arbitration, and when necessary, litigation.
- Physician Issues
In addition to our work assisting physicians with day-to-day patient care issues and legal matters associated with business operations and corporate formation, we represent physicians in every kind of matter relating to professional qualifications, including professional actions before state licensing boards. We advise physicians in formal hearings relating to possible license suspension or revocation, as well as in peer review actions.
- Employment Issues
We provide a full range of labor and employment services, handling both litigation and transactional matters. These services encompass wage and hour laws; OSHA; termination and severance programs; employee benefits; contracting issues, including restrictive covenants; defending EEOC and other discrimination actions; preparation of handbooks and policies tailored to the needs of health care providers; alternative staffing arrangements; and labor organizing issues. We work closely with our health care clients to structure human resources decision-making in ways that minimize the risk of litigation.
- Institutional Licensure and Medicare Certification
We defend our clients in investigations and against administrative penalty assessments and other adverse licensure determinations made under state licensure laws and Medicare and Medicaid laws. We also assist new health ventures in securing appropriate licensure and certification.
- Credentialing and Accreditation
We represent hospitals and individual physicians in matters involving the delineation, limitation, or termination of clinical privileges; on issues involving medical staff appointment and organization; and the preparation and revision of medical staff bylaws. We also advise health care providers, institutions, and provider associations about credentialing and peer review in a variety of settings and about credentialing issues for every type of allied health professional. Our attorneys also assist clients in preparing for JCAHO, NCQA, and other accreditation surveys.
- Certificate of Need
We provide assistance in certificate of need ("CON") proceedings involving the addition of new facilities, medical equipment, or services. We secure determinations that proposals are not subject to review and assist clients and their consultants in preparing CON applications.
- Patient Care and Operational Issues
We advise providers on all legal issues regarding patient care and daily operational issues uniquely affecting the health care industry. We provide legal support related to drafting and implementation of policies, emergency medical services, "patient dumping," medical records, informed consent, treatment of minors, "right to die," and other bio-medical ethical issues. A number of our attorneys also provide assistance to the medical ethics committees of health care providers.
- Medical Malpractice
We represent hospitals, physicians, and others in the defense of malpractice actions involving most medical disciplines, including neonatology, obstetrics and gynecology, cardiology, orthopedics, general medicine, surgery, emergency medicine, thoracic surgery, transplants, and pediatrics. Our attorneys work closely with physicians from these disciplines to present a coordinated defense to malpractice charges. Because of our experience in this area, we are able not only to defend medical malpractice cases, but also to offer practical advice to health care clients in support of their risk-management programs. In addition, we represent clients in malpractice claims asserted against nurses, technologists, and other staff personnel resulting from such allegations as improper drug dosage or drug diversion, failure to follow a physician’s orders, improper charting, improper disposal of remains, and improper operation of ambulance and emergency facilities.
- Telemedicine and Electronic Health Information
Our attorneys provide advice regarding the legal issues arising from the use of telecommunications to deliver health care services and information, including teleradiology, interactive video consultations, use of the Internet, computer-based patient records, and electronic signatures. We assist providers with the unique professional licensing issues, medical malpractice and other liability concerns, Food and Drug Administration requirements for equipment and software, reimbursement questions, medical research, informed consent, and privacy and confidentiality issues which arise from this technology. Our attorneys also draft and review technology and license agreements for telemedical and information-systems equipment and software. We advise clients regarding the novel legal rules for the creation, maintenance, storage, and communication of electronic health information, and we work with health industry groups to develop a workable, responsible regulatory framework to maximize the benefits of this new technology.