Ambulatory Surgery Center Acquisitions: Minimizing Compliance Risks

Outline

1. The transaction process non-disclosure/confidentiality agreement
   1. Negotiation of NDA
      1. Exchange of information and documentation
      2. 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. Antitrust considerations
   7. 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

Benefits

The panel will review these and other key issues:

• What are the key legal concerns for hospitals and physicians considering acquisition or investment in an ASC?
• What compliance risks related to use of the ASC by the physician owners are faced by the ASC?
• What are the best practices for counsel in the due diligence process?