Practice Areas & Industries: Duane Morris LLP

 




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Practice/Industry Group Overview

Navigating through the never-ending roadblocks in the practice of medicine can be a daunting process. Duane Morris attorneys have formed a special group devoted to dealing with the specific challenges faced by physicians and physician practices. In the complex health care environment, physicians can rely on one of our Duane Morris practitioners to address health care related legal issues that will allow physician practices to grow and thrive through their business relationships and their practice management.

Business Relationships

Duane Morris attorneys have experience in negotiating and building business relationships to help physicians and their practices grow. Duane Morris attorneys can, and do, assist physicians on a daily basis in their relationships with hospitals, joint ventures, credentialing, or resulting litigation matters. We also assist physicians in the dissolution of medical groups and restructuring of new organizations.

Our attorneys counsel physicians through Stark and Anti-Kickback laws and assist physicians in assuring that their agreements and business relationships comply with these statutes and their regulations. Furthermore, our attorneys counsel physicians on protecting their businesses through non-compete agreements, favorable contract terms and terminology, tax planning and tax compliance, as well as proper counseling related to Medicare, Medicaid, and other third-party reimbursement.

Because of the experience of our attorneys in healthcare law, assisting physicians to form the correct corporate structure that will allow physician practices to flourish is an important factor in our representation.

Corporate and Regulatory Counseling

In addition to counseling physicians on the myriad of healthcare fraud and abuse laws, including Stark, Anti-Kickback, and the False Claims Act, our attorneys are skilled in counseling physicians regarding various licensure and state regulatory requirements. Whether meeting particular safe harbors, or dealing with physician recruitment and other exceptions, Duane Morris attorneys are well versed in these fraud and abuse laws and their exceptions. From state anti-kickback and state self-referral prohibitions to compliance with particular state medical practice laws, Duane Morris attorneys can assist physicians to meet the regulatory challenges that face modern day physician practices. Our attorneys are experienced in representing physicians in actions by state licensure boards seeking to impose sanctions (i.e., license probation, suspension, revocation, etc.) and other disciplinary action against physicians. Duane Morris attorneys represent clients in hearings, administrative proceedings and National Practitioner Data Bank matters. Our attorneys are experienced in defending white collar criminal investigations in all stages, from responding to grand jury or regulatory subpoenas through trial.

We routinely work with medical practice groups in acquiring other practices or groups, in selling their practices to hospitals or other providers, and assisting with joint venture arrangements from formation to closing. Duane Morris attorneys have substantial experience in structuring or advising on such asset or stock transactions to protect the value of the practice our clients have built. Our attorneys negotiate purchase agreements to protect the value of the transaction of our physician clients and to ensure a successful closing. We also provide counseling on structuring physician syndication agreements and negotiating and closing electronic medical record (electronic health record (EHR)) transactions.

With the tightening reins of lowered reimbursement for services and an increase in health care fraud and abuse investigations by the government, Duane Morris attorneys assist providers in Medicare/Medicaid reimbursement disputes and challenges from all other public and private payors. Whether the matter involves recoupment of payments, penalties for improper billing, or penalties resulting from government investigation into billing practices, our attorneys have experience in handling these enforcement matters to protect physicians and their practices from the complexities of the health care regulatory quagmire.

Contract Negotiation

We assist physicians in developing relationships and contracting with other physician groups, hospitals, or other entities through employment agreements, independent contractor agreements, exclusive provider agreements, physician syndication agreements, joint venture agreements with hospitals or clinics, or other agreements with health care entities and insurers. Our attorneys counsel physicians on negotiating their own contracts, or assist with negotiating on the physician's behalf. Our talented attorneys assist physicians in reducing liability through physician contracting with an eye toward drafting effective and fair non-competition or other restrictive covenant clauses. We also are wary of potential pitfalls in physician contracting that have begun to appear in the corporate practice of medicine, and regulatory issues with employment and benefits pertaining solely to physicians.

In the face of regulatory hurdles, modern day physicians must also deal with managed care organizations and the financial impact such organizations can have on their practices. Duane Morris attorneys can assist physicians to effectively contract with managed care organizations and attempt to equalize the playing field in negotiating third-party reimbursement.

Our attorneys have considerable experience negotiating contracts for physicians who typically do not have the time or the expertise to negotiate with large managed care organizations. Appropriate contract language can go a long way in protecting physicians against liability and assisting them to ensure proper payment under important managed care agreements.

Credentialing and Medical Staff Issues

Duane Morris attorneys have experience counseling physicians in hospital/physician relationships, credentialing and medical staff issues. Whether it is a medical staff dispute, compliance with bylaws, or responding to inquiries, Duane Morris attorneys can help. Our attorneys have extensive experience with medical staff fair hearings and federal and state litigation involving staff privileges.

Our attorneys have the ability to resolve disputes with disruptive physicians and have supported physicians through credentialing processes, whether for hospital medical staffs or managed care organizations. We routinely assist physicians in resolving disputes, allowing physicians to continue to practice medicine without worrying about administrative burdens or interference.

Litigation

Built on the core strength of its litigators, Duane Morris attorneys are regularly involved in the defense and representation of healthcare providers in regulatory, civil and criminal proceedings. From investigations to jury trials, our litigators are experienced in representing physicians and their practices in all state and federal courts, as well as administrative law forums. We also have experience in preparing physician and other health care witnesses in existing litigation and investigations, and in emerging disputes. Our attorneys counsel clients on using litigation as a last resort and, when engaging in litigation, we represent physicians and practice groups with the advocacy they need in health care today.

As parties become disillusioned with the traditional litigation process, more and more providers, payors, and institutions are turning to mediation and arbitration to resolve their disputes. We also have experience in drafting and interpreting arbitration or mediation clauses in physician contracts. Our attorneys serve as arbitrators and mediators in major disputes and routinely arbitrate disputes on behalf of physicians and physician groups as the need arises with the American Health Lawyers Association and the American Arbitration Association. Our attorneys assist physicians in negotiating, litigating or arbitrating against managed care companies to enforce the rights they may have under existing or previous contracts with the managed care organizations.

Practice Management

Managing a physician practice is no easy task. Duane Morris health lawyers assist physician practices in their everyday contracting, compliance, employee relations, employee benefits, and even immigration issues. Advising clients on the latest developments in health care law, our attorneys are at the forefront of assisting physicians in avoiding problems that prevent their practices from growing.

Labor and Employment

Labor and employment issues can become an unwanted distraction from patient care. And yet, physician practices are uniquely dependent on good employees to administer that care, ensure proper payment and support the practice. Physician practices value the services provided by our Labor and Employment group in helping them manage their office and office staff to anticipate and avoid difficult labor and employment issues before they grow into seriously distracting problems or litigation.

Duane Morris' attorneys have extensive experience providing counsel on, among others, wage and hour issues, problems or complaints about harassment and discrimination, retaliation and whistleblowers, hiring, firing and disciplinary actions, disability accommodations and/or leave issues, impairment and drug testing, non-compete and trade secrets and the wide variety of other workplace matters that arise in medical practices. Duane Morris attorneys regularly review, develop and improve human resources systems and provide training to both supervisors and staff with an aim toward preventing employment problems. Our representation also includes setting up and monitoring employee benefit plans, profit sharing plans, and pension plans that are up to date with IRS, ERISA and other regulatory requirements.

Duane Morris attorneys have extensive experience defending physician practices in all manner of employment litigation and administrative matters. To name a few, we have successfully defended and/or resolved many cases on behalf of physicians or medical practices involving serious allegations of sexual harassment, gender and pregnancy discrimination, race, national origin and age discrimination or harassment, disability claims, wage and hour and overtime claims, retaliation and whistleblower claims and non-compete lawsuits. We appear in federal and state courts as well as before the many federal, state and local agencies that enforce employment laws, including the Equal Employment Opportunity Commission, state and local fair employment agencies, U.S. and state Departments of Labor, the Occupational Safety and Health Administration, state unemployment and workers' compensation agencies and others.

Immigration

Whether involving nurses or physicians, Duane Morris' cadre of talented immigration attorneys can assist physicians with J-1 and H-1B visas, other employment or educational visas, and can work with health care providers to meet the varied demands of a modern workforce. Whether you require our assistance in completing the paperwork with U.S. Citizenship and Immigration Services (USCIS), or with other government entities, our attorneys can assist with all types of immigration matters to meet the needs of Health Systems, Hospitals and other large or small health care providers.

Our attorneys have particular experience in assisting physicians and their employers in navigating the J-1 visa waiver process for physicians who will work in medically underserved areas, including applying for proper work authorization, and permanent residence in the United States. They also have experience in working with hospitals and recruiters to bring nurses to the United States from abroad.

Healthcare Privacy

Our attorneys often advise clients on the myriad of privacy laws that physicians must deal with on a daily basis in their medical practice. Engaging in proper business practices that comply with state privacy laws on patient information, as well as the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy, security and transactions rules, is crucial for physicians to avoid fines, penalties, and lawsuits. Our attorneys are experienced in dealing with healthcare privacy matters and counseling physicians in an efficient manner.

Telemedicine

Our attorneys have experience counseling clients on various aspects of technology in health care, including telemedicine. Physicians are constantly on the forefront of technological advancements in medicine and Duane Morris attorneys regularly counsel physicians in their technological endeavors. Our attorneys counsel physicians on the myriad of licensure, regulatory, fraud and abuse, and billing issues confronting physicians in the telemedicine arena, and the interaction of telemedicine with electronic medical records or EHRs.

Corporate Compliance

A critical part of any physician practice is its corporate compliance plan. Duane Morris attorneys recognize the importance of corporate compliance plans and have tailored corporate compliance plans to fit both the size, practice, and budget of physicians today.

Our attorneys have experience in self-disclosure of fraud and abuse to the Office of Inspector General (OIG) as well as defending against fraud and abuse claims brought on behalf of the government against physicians and physician groups. Our representation of physicians extends to dealing with government agencies including the U.S. Department of Health and Human Services, OIG, IRS, State Medicaid Fraud Control Units, and the FBI. With the level of scrutiny of healthcare practices today, Duane Morris attorneys are prepared to assist physicians in every aspect of their daily medical practice.


 

Services Available

 
Group Presentations
  Duane Morris Special Counsel Michael E. Clark to Present at the 2015 Physicians Legal Issues Conference, Chicago, June 10, 2015
Simplifying the Complexities of Compliance, Wheeling, Illinois, June 3, 2015
Duane Morris Partner Mark Silberman to Present at AHLA's Long Term Care and the Law Conference, New Orleans, February 24, 2015
 
 
Articles Authored by Lawyers at this office:

CMS Updates 5 Star Ratings System for Nursing Homes with New Measures
Ari J. Markenson, April 07, 2015
As of February 20, 2015, the Centers for Medicare & Medicaid Services (CMS) has revised its 5 Star Rating System for nursing homes. The changes to the system involve adding two new nursing home quality measures for antipsychotic use into the Quality Measure Rating, Increasing the number of...

Lawyer in Vietnam Oliver Massmann Pharmaceutical Market
Oliver Massmann, March 30, 2015
Vietnam’s healthcare system is currently in general on the move due to the economic growth and the rapid development.

OIG - Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities
Ari J. Markenson, March 30, 2015
On January 14, 2015, the U.S. DHHS Inspector General’s Office (the “OIG”) released a report (OEI-02-14-00070) entitled “Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities.”

CMS Advises That Payment Codes on Home Health Claims Will Be Matched Against OASIS
Ari J. Markenson, March 25, 2015
CMS recently issued Transmittal SE1504 entitled “Payment Codes on Home Health Claims Will Be Matched Against Patient Assessments”.

Civil RICO Actions on the Rise to Combat Healthcare Insurance Fraud
James J. Ferrelli, March 25, 2015
Over the past several years, insurance carriers have aggressively pursued civil suits against doctors and other medical providers in an effort to fight healthcare insurance fraud. Besides theories of liability based upon common law claims such as fraud and unjust enrichment, insurers have more...

Consultants’ Communications Privileged from Discovery
Philip H. Lebowitz, March 25, 2015
In healthcare, companies often hire consultants to review billing and coding, privacy and security and a host of other technical issues that regular staff does not have the time or expertise to pursue. A recent discovery ruling in federal court in the Eastern District of Pennsylvania holds that...

HHS Moves to Limit In-Office Ancillary Services Exception
Matthew C. Jones, March 19, 2015
The Department of Health and Human Services (“HHS”) is once again targeting the In-Office Ancillary Services Exception (“IOASE”) to the federal Stark Law, in an attempt to produce cost savings in the U.S. healthcare system. The IOASE provides a limited exception to the Stark...

Health System Integration and Antitrust Laws on Collision Course
Philip H. Lebowitz, March 18, 2015
Health systems attempting to fulfill the mandate of integrating hospitals and physicians may find themselves accused of going too far. Although the Affordable Care Act, shared savings, gainsharing and other alternative payment methodologies have made integration of physicians, hospitals and other...

New Jersey State Bar Committee to Review RPC 1.2(d) and Issues Pertaining to Medical Marijuana
James J. Ferrelli, March 18, 2015
The New Jersey State Bar Association (“NJSBA”) has established an ad hoc committee to review the ethical issues raised under New Jersey Rule of Professional Conduct 1.2(d) (which prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is illegal or...

Virtual Credit Card Payments
Patricia S. Hofstra, March 18, 2015
On January 30, 2015, several healthcare organizations sent a group letter to CMS protesting the use of virtual credit cards by health plans to pay providers. In a virtual credit card payment (a nonstandard type of electronic funds transfer EFT), a health plan or its payment vendor issues single-use...

ACOs are More Important Than Ever for LTC Facilities
Amy E. McCracken, March 13, 2015
On January 26, 2015, the United States Department of Health & Human Services (HHS) announced its timeline for shifting Medicare reimbursements from volume-based criteria to value-based criteria. HHS has adopted a framework that categorizes health care payments according to how providers receive...

Antipsychotic Drug Use Can Lower Nursing Home's Five-Star Rating
Amy E. McCracken, March 13, 2015
The Centers for Medicare & Medicaid Services (CMS) is continuing its efforts to reduce the national prevalence of antipsychotic drug use in long-stay nursing home residents. Its initial goal of a 15.1% reduction in antipsychotic drug use was met, so CMS now seeks to reduce antipsychotic drugs...

Fees and Costs Awarded to False Claims Act Defendant
Seth A. Goldberg, March 13, 2015
A recent decision in the U.S. District Court for the Southern District of New York provides fair warning to qui tam relators who assert erroneous claims under the False Claims Act ("FCA") that they could be hit with legal fees and expenses pursuant to 31 U.S.C. § 3730, which permits...

Health Care Workers May Think Twice Before Becoming a Relator
Amy E. McCracken, March 13, 2015
The Federal False Claims Act (and many similar state false claims acts) allow an individual-called a "relator"-to file a lawsuit on behalf of the United States Government. If successful, the relator stands to collect a portion of the amount collected. Since the False Claims Act provides...

Mayo Lawsuit Against Former Exec Raises Numerous Health Care and Business Litigation Issues
Elinor H. Murarova, March 13, 2015
A recent settlement between Mayo Collaborative Services d/b/a Mayo Medical Laboratories ("MML") and Mayo Clinic (together with MML, "Mayo") and a former Mayo executive, Dr. Franklin Cockerill, reveals the potential legal issues that may arise when health care executives seek new...

New CMS Payment Policy Will Negatively impact Healthcare Investors
C. Mitchell Goldman, March 13, 2015
I have been concerned about the difficulty of projecting revenue and determining valuations for new and existing healthcare companies based on risk based reimbursement models. My fears have not been allayed. Rather, they have been confirmed.

Real Estate Tax Exemption Issue Muddied Again
Philip H. Lebowitz, March 13, 2015
On December 23, 2014, the Commonwealth Court of Pennsylvania logged another frustrating mile down the confused and confusing road of property tax exemption for purely public charities. In Fayette Resources, Inc. v. Fayette County Board of Assessment Appeals, the Court overturned a lower court...

Top Three Problems with Text Messaging in Health Care Settings
Amy E. McCracken, March 13, 2015
1. Since most text messaging is not a secure form of communication, it raises HIPAA concerns if any protected health information is included in the text message. There is the possibility of a data breach in the transmission of the text message, as well as in the event of a lost or stolen phone.

FDA Issues Guidance on Registration, Fees and Reporting Requirements for Drug Compounding Outsourcing Facilities
, February 26, 2015
On November 21, 2014, the U.S. Food and Drug Administration (FDA) announced the release of three new guidance documents related to drug compounding outsourcing facilities. These documents include:

7th Circuit Clarifies FCA Fraud Standard
Philip H. Lebowitz, January 23, 2015
In an opinion openly skeptical of a relator’s knowledge, the 7th Circuit Court of Appeals recently affirmed the dismissal of False Claims Act claims against a Chicago pharmacy brought by a former employee of the pharmacy. The principal claims in the case, nadyor v. Ukrainian Village Pharmacy,...

CMS Bringing Star Ratings to Home Health
Ari J. Markenson, January 23, 2015
The Centers for Medicare and Medicaid Services (“CMS”) issued a fact sheet on December 11th, 2014, discussing its intention to issue star ratings for Medicare certified home health agencies. The star ratings would be live in 2015.

Clinical Trial Sponsors Can Be Liable For Inadequate Consent Forms
Philip H. Lebowitz, January 23, 2015
Physicians acting as investigators for a clinical trial testing a new therapy are required to present to each patient or study subject a consent form, indicating that the patient understands the risks, benefits and alternatives of participating in the trial and voluntarily elects to do so. Federal...

The IMPACT ACT of 2014 - New Enforcement and Oversight for Hospice Providers
Ari J. Markenson, January 23, 2015
The IMPACT Act of 2014 (“IMPACT”) was signed into law on October 6, 2014. It includes two significant enforcement and oversight changes for Medicare hospice providers among other post-acute care policy changes.

OIG 2015 Work Plan - Hospice
Ari J. Markenson, January 22, 2015
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...

OIG 2015 Work Plan - Home Health
Ari J. Markenson, January 02, 2015
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...

Responding to Subpoena for Medical Records May Create Liability for Healthcare Providers Under State Law Negligence Claims
Seth A. Goldberg,Philip H. Lebowitz, December 10, 2014
Healthcare providers receiving a subpoena for patient medical records may want to think twice before complying with the subpoena and producing the records. A recent Connecticut case, Byrne v. Avery Center for Obstetrics and Gynecology, P.C. ("Byrne"), arose when the defendant gynecology...

CMS Extends Period of Exemption for Hospices Affected by Nursing Shortage
Ari J. Markenson, November 17, 2014
On October 3, 2014, CMS issued S&C: 12-43-Hospice entitled “Impact of Nursing Shortage on Hospice Care”.

FDA's Final Guidance on Determination of Five-Year NCE Exclusivity for Certain Fixed-Combination Drug Products Under Federal FDCA
Carolyn A. Alenci,Frederick R. Ball, November 17, 2014
The U.S. Food and Drug Administration (FDA) recently published its final Guidance for Industry detailing circumstances under which a fixed-combination drug product (FCD) may be entitled to five-year new chemical entity (NCE) exclusivity.

OIG 2015 Work Plan - Skilled Nursing Facilities
Ari J. Markenson, November 17, 2014
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...

CMS Extends Moratoria for the Enrollment of New Home Health Agencies and Ambulance Suppliers and Providers
Ari J. Markenson, August 04, 2014
Over the past year, the Centers for Medicare & Medicaid Services (CMS) flexed its regulatory muscle to establish temporary moratoria on the enrollment of certain providers and suppliers under its recent authority pursuant to 42 U.S.C. § 1395cc(j)(7) and 42 CFR § 424.570.

FDA Issues Draft Guidance for Identification and Notification of Suspect Products
, July 08, 2014
As discussed in our April 11, 2014 Alert, the Drug Supply Chain Security Act (DSCSA) was enacted "to build an electronic, interoperable system to identify and trace certain prescription drugs as they are distributed within the United States." Recently, the U.S. Food and Drug...

FDA Releases Guidance for Industry on ANDAs: Stability Testing of Drug Substances and Products, Questions and Answers
, July 08, 2014
The U.S. Food and Drug Administration (FDA) recently published a new Guidance for Industry, titled ANDAs: Stability Testing of Drug Substances and Products, Questions and Answers, which provides answers to questions from public comments received on the draft Guidance for Industry on ANDAs:...

Singapore: Opportunities for Medical Innovation
Lisa W. Clark,Michelle Ranello, July 08, 2014
In addition to mobile health opportunities in the United States, tremendous potential for growth exists throughout the world, including in Southeast Asia. Singapore in particular is working to become a leader in healthcare innovation. It welcomes innovators and companies from around the world to...

The Success Checklist: What mHealth Investors and Entrepreneurs Should Kno
Lisa W. Clark,C. Mitchell Goldman, July 08, 2014
A healthcare start-up developer has an intriguing concept for an app or a software solution. It may be an app tied to a sensor that is designed to transmit a diabetic's blood glucose levels to her physician, or an app that has a proprietary algorithm that analyzes a heart patient's water retention...