Due Diligence for Compensation Compliance: Mitigating Risk in Financial Relationships and Healthcare Transactions

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

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Conducted on Tuesday, November 8, 2022

Recorded event now available

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Course Materials

This CLE course will provide an update on the continuing and emerging risk areas in financial relationships--and specifically, compensation--between and among healthcare providers. The panel will discuss the historical and emerging risk areas as a foundation for due diligence review in healthcare transactions.

Description

Financial relationships between and among healthcare providers--specifically, methods and amounts of compensation--continue to be an area of significant scrutiny and government enforcement activity, with government prosecutors having both civil and criminal enforcement tools in their current toolbox. The stakes can be high. Civil penalties and settlement amounts for actions brought under healthcare fraud and abuse laws have reached tens and even hundreds of millions of dollars, while the government's alternative and complementary use of its criminal enforcement tools (carrying the risk of jail time) has increased. The increasing stakes in many ways reflect the increasing complexity of relationships in healthcare, coupled with increasing sophistication of the claims being brought by whistleblowers and prosecutors.

In a 2020 update to its memo regarding "Evaluation of Corporate Compliance Programs," the U.S. Department of Justice stated that a well designed compliance program should include comprehensive due diligence of any transaction targets, and "f]lawed or incomplete pre- or post-[transaction] due diligence… can allow misconduct to continue… causing resulting harm to a business's profitability and reputation and risking civil and criminal liability." Of note, state and federal healthcare fraud and abuse laws may define "financial relationships" very broadly. Therefore, it may often be the case that parties should review all compensation arrangements involving those who can make or influence referrals, including professional service agreements, management agreements, and employment agreements.

Depending on the nature of risks identified during the diligence process, the parties can address and mitigate potential liability or compliance problems.

Listen as our authoritative panel of healthcare attorneys examines the issues in healthcare compensation compliance and the historical and emerging risk areas and related focus areas for due diligence review.

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Outline

  1. New and evolving legal risk areas in compensation and other financial arrangements
    1. Under the Stark Law
    2. Under federal Anti-Kickback Statute
    3. Under federal False Claims Act
    4. Under federal, state, and local tax exemption laws
    5. Under federal and state antitrust laws
    6. Under other select federal and state laws and regulations
  2. Examples of enforcement activities and resulting liabilities in the evolving risk areas
  3. The due diligence process: how it may work, what it should do, and how it can shape transactions
  4. Tips and takeaways for healthcare transactions and compliance programs

Benefits

The panel will review these and other key issues:

  • What are the potential risks related to compensation compliance?
  • What is the benefit of due diligence for compensation compliance?
  • What practices can counsel and clients employ to mitigate risks related to compensation?

Faculty

Ferrari, Andrea
Andrea M. Ferrari

Partner
Jones Walker

Ms. Ferrari is a partner in the Corporate Practice Group and a member of the firm’s Healthcare Industry Team....  |  Read More

Jacobs, Clevonne
Vonne M. Jacobs

Attorney
Hall Render Killian Heath & Lyman

Ms. Jacobs focuses her practice in the area of healthcare transactions. Calling upon her years of dedicated experience,...  |  Read More

Wade, Robert
Robert A. Wade

Partner
Nelson Mullins Riley & Scarborough

Mr. Wade has more than 25 years of experience in the healthcare industry and counsels clients on fraud and abuse...  |  Read More

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