Ambulatory Surgery Center Acquisitions: Meeting Regulatory Requirements, Conducting Due Diligence, Minimizing Risks

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, June 7, 2017
Recorded event now available

This CLE webinar will provide healthcare counsel with a review of the key regulatory issues involved in acquisitions of ambulatory surgery centers (ASCs). The panel will offer guidance on structuring the arrangements and conducting due diligence.


The healthcare industry has seen a resurgence of ASC acquisitions. For example, UnitedHealth Group Inc.’s Optum agreed to acquire Surgical Care Affiliates Inc. for about $2.3 billion in Jan. 2017. Prior to any acquisition, there are a number of steps that a buyer can take to mitigate risk associated with the acquisition of an ASC.

To minimize the risks involved with acquiring the ASC, counsel to hospitals and healthcare systems involved in an acquisition should conduct a thorough due diligence review, including an examination of payments to physicians, a review of fraud and abuse regulatory compliance, and an audit of coding and billing.

Listen as our authoritative panel examines the regulatory issues facing those involved in acquisitions of ASCs and offers best practices for due diligence and addressing issues in operating/management agreements.


  1. The transaction process
    1. Non-disclosure/confidentiality agreement
      1. Negotiation of NDA
      2. Exchange of information and documentation
      3. Commencement of negotiations
    2. Letter of intent/term sheet
      1. Continued due diligence
      2. Negotiate material terms
      3. Non-binding LOI
    3. Definitive documents
      1. Negotiate definitive documents
    4. Closing
      1. Execute and deliver transaction documents
      2. Satisfy all “conditions to close”
  2. Due diligence
    1. Compliance with applicable healthcare statutes and regulations:
      1. Anti-kickback safe harbors
      2. Comparable state anti-fraud safe harbors
      3. State self-referral laws, if applicable
    2. Billing and coding audit and review
      1. Medicare/Medicaid audits or reviews
      2. Private payer recoupments
    3. Compliance with conditions of participation
    4. Licensure, CON and accreditation
    5. Past or pending claims
    6. Other
  3. Deal structure
    1. Acquisition of all or substantially all of the assets of ASC
      1. Stark Law “isolated transactions” exception
      2. Anti-kickback statute
      3. Hospital-based reimbursement
      4. CON, licensure
      5. Antitrust
    2. Acquisition of ownership interests in existing ASC
      1. Stark Law “isolated transactions” exception
      2. Anti-kickback statute
        1. OIG advisory opinions (acquisition transaction)
        2. “Ambulatory surgical centers” safe harbors
      3. Post-closing arrangements
  4. Best practices


The panel will review these and other key issues:

  • What are the key legal concerns for hospitals and physicians considering a hospital acquisition of an ASC?
  • What compliance risks related to continued use of the ASC by the physicians are faced by the entities acquiring ASCs?
  • What are the best practices for counsel in the due diligence process?


Curtis H. Bernstein, CPA/ABV, ASA, CVA, MBA, Principal
Pinnacle Healthcare Consulting, Denver

Mr. Bernstein specializes in providing valuation, transaction advisory, strategic and operational consulting services to clients. He has extensive experience working closely with hospital systems, physician groups, ambulatory surgery centers and other healthcare providers. He also provides valuation services in the areas of business valuation and complex compensation structures.

Melissa Szabad, Partner
McGuireWoods, Chicago

Ms. Szabad’s practice focuses on healthcare corporate and regulatory matters. She advises various types of healthcare providers, including ambulatory surgery centers, ambulatory surgery center chains, and hospitals and health systems. Ms. Szabad’s experience includes counseling clients on general corporate matters, anti-kickback and Stark issues, self-referral, corporate practice of medicine and fee-splitting prohibitions, HIPAA, certificate of need, licensure requirements, and state and federal securities matters.


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Health Law Advisory Board

Lowell C. Brown


Arent Fox

Jennifer L. Evans



Ryan S. Johnson


Fredrikson & Byron

Gina M. Kastel


Faegre Baker Daniels

Karen S. Lovitch


Mintz, Levin, Cohn, Ferris, Glovsky and Popeo

David A. Manko


Proskauer Rose

John J. Miles

Senior Counsel

Baker Donelson

C. Elizabeth O'Keeffe


Wyatt, Tarrant & Combs

J. Peter Rich


McDermott Will & Emery

Donald H. Romano

Of Counsel

Foley & Lardner

Judith A. Waltz


Foley & Lardner

John R. Washlick


Buchanan Ingersoll & Rooney

Jesse A. Witten


Drinker Biddle & Reath

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