Bass, Berry & Sims | Practices | Healthcare Industry

Practices Matters Attorneys Newsletters	Healthcare Industry The Healthcare Industry Practice at Bass, Berry & Sims is a broad, integrated and interdisciplinary team of attorneys that brings together the multitude of legal specialties necessary to service one of the largest, most highly regulated industries in the United States. Our firm has participated in the evolution of the healthcare services industry in Nashville, the home of entrepreneurial healthcare in America. This evolution has led us from our representation of proprietary and not-for-profit hospitals, ancillary service providers, large physician groups and long-term care providers to the development and representation of disease management companies, managed care organizations and structuring for-profit/non-profit joint ventures. From our in-depth involvement in the industry, we have learned that the multitude of legal issues affecting healthcare clients do not fit neatly within one or two areas of legal expertise. For that reason, we have structured our healthcare practice as an integrated group by identifying and training more than 100 attorneys in virtually all areas of the firm to blend their substantive expertise with the unique demands of the healthcare industry. Listed below are the substantive areas included within our Healthcare Industry Practice, and the Bass, Berry & Sims attorneys who devote their practices in large part to clients in the healthcare industry. Scope of Practice Our Healthcare Industry Practice offers comprehensive services to clients with operations throughout the United States, ranging from ongoing operational and regulatory compliance issues to government investigations, litigation, securities offerings, and merger and acquisition transactions. These types of legal services require expertise and experience in antitrust, fraud and abuse compliance, government and private reimbursement, licensure and certification matters, physician self-referral laws, business litigation, taxation of exempt and non-exempt organizations, real estate and insurance expertise, managed care contracting, commercial and bond financings, real estate and general business and transactional matters. Our clients reflect the broad spectrum of healthcare providers and payors and include among them the types listed below. We have found that a general understanding of the perspectives of all segments of the market is critical to advising each individual provider or payor: Proprietary, non-profit and academic acute care hospitals and medical centers, including specialty hospitals Ambulatory care centers, ambulatory surgical treatment centers, home health agencies and diagnostic imaging centers Subacute care facilities, residential treatment centers, psychiatric hospitals and rehabilitation agencies Dialysis centers, cancer centers and disease management companies Insurance companies, health maintenance organizations, preferred provider organizations, physician hospital organizations and similar entities eHealth companies providing IT solutions and medical education to providers and payors Group purchasing organizations Single-specialty and multi-specialty physician group practices Physician practice management companies Retirement, long-term care and assisted living facilities Equity investors, lenders, and investment banking firms financing transactions for healthcare companies Businesses that design, manufacture and distribute medical devices and pharmaceuticals Attorneys. Attorneys in our Healthcare Industry Practice are active participants in numerous industry organizations and bar associations, such as the American Health Lawyers Association and the American Bar Association's Health Law Section. They frequently speak before healthcare groups as well as write and publish a periodic client newsletter, Health Law Update. The firm is a founding member of and active in the Nashville Health Care Council, which actively promotes the growth and development of healthcare companies based in the Nashville area. The chair of our healthcare practice recently served on its Board of Directors. Members of the firm have participated in international trade missions sponsored by the Nashville Health Care Council. Healthcare Industry Services Operational and Regulatory. Bass, Berry & Sims attorneys handle a multitude of critical healthcare regulatory and operational issues, including self-referral prohibitions, fraud and abuse analysis, licensure, certification and accreditation for healthcare facilities, certificates of need, corporate compliance programs, managed care contracting, group purchasing arrangements, HIPAA compliance and Medicare, Medicaid and third-party payor reimbursement matters. Our expertise includes specialty services such as hospitalist programs and disease management, and the difficult issues surrounding physician recruitment. We have advised many clients on the rapidly evolving and complex set of laws involving physician self-referral and fraud and abuse restrictions in order to structure transactions, joint ventures and other financial relationships to comply with federal and state laws, including those related to the corporate practice of medicine and fee splitting. We regularly assist clients with traditional operational requirements applicable to healthcare facilities, such as medical staff bylaws, staff privileges and professional liability. We also handle patient care issues involving advance directives, confidentiality, EMTALA transfers, informed consent and anti-discrimination and accessibility laws. Legislative Matters. Our attorneys actively monitor both federal and state healthcare laws and regulations to provide clients with up-to-date information regarding important legislative developments affecting the healthcare industry. We publish a periodic client newsletter detailing important legislative and regulatory matters of interest to our clients, including alerts of new proposals that may pose risks or opportunities. We lobby on behalf of clients and industry groups with regard to legislative proposals being considered by the Tennessee General Assembly. Mergers and Acquisitions; Capital Raising. Bass, Berry & Sims has extensive experience in mergers, acquisitions, joint ventures, private placements and public offerings involving hospital systems, long-term care facilities, ancillary service providers, independent practice associations, managed care organizations and health information and technology entities. Our engagements feature thorough due diligence reviews to uncover legal exposure in acquired entities or joint venture partners. Our expertise has provided us the opportunity to work with many investment bankers and equity and debt financing sources throughout the country. We have a depth of experience in hospital syndications and in joint ventures between hospitals and physicians and between providers and payors. Insurance and Managed Care. We have recognized proficiency in the area of insurance and managed care organizations that has been utilized by many of our healthcare clients. Bass, Berry & Sims has represented a number of health maintenance organizations and preferred provider organizations in their formation and operation (including the representation of publicly-held HMOs), especially in connection with the requirements under state HMO statutes and insurance laws. Members of our Insurance and Managed Care Practice have advised our healthcare provider clients in their negotiations with managed care organizations and in the placement and coordination of their insurance coverages, intervening in those situations that pose material risks of loss. Along with our Litigation Practice, we implement risk management programs. Tax. Our integrated approach for healthcare clients is also reflected in our work on tax matters involving for-profit and exempt organizations. Our attorneys routinely advise healthcare clients on exempt status issues such as private inurement, unrelated business income tax and non-profit to for-profit conversions, as well as the varied tax issues that arise in structuring taxable and tax-free acquisitions and joint ventures. Our tax expertise is also a valuable asset we provide in connection with corporate restructurings and spin-offs. Bond Financings. Our attorneys have a broad range of experience in both tax-exempt and taxable healthcare bond issues involving acute care hospitals, specialty hospitals, nursing homes and other healthcare facilities. We have the largest public finance practice in the state. Additionally, according to data published by Thompson Financial Securities Data, in 2004 we served as bond counsel for issues with an aggregate dollar amount of $1.64 billion. Since 2002, we have served as bond or underwriters counsel on over $730 million worth of tax exempt healthcare financings. Commercial Transactions. The Commercial Transactions members of our Healthcare Industry Practice represent numerous healthcare clients in their relationships with banking institutions, insurance companies and other institutional lenders in a variety of financing transactions and in general commercial matters. These transactions include multi-lender credit syndications, debt placements, mezzanine financings, relationships between senior and subordinated lenders, acquisition and development of real estate, real estate and construction loans, asset securitizations, sale and leaseback transactions, equipment and synthetic leases and letters of credit. We counsel clients concerning compliance with federal and state law governing security interests in Medicare and Medicaid receivables. We have a depth of experience in dealing with healthcare businesses that have significant leverage and complex capital structures. Labor and Employment. Bass, Berry & Sims has a broad array of experience in representing clients in the healthcare industry, ranging from nationwide representation of a large dialysis company and representation of the largest private employer in middle Tennessee (which is in the healthcare industry) to representing local and regional physician practice groups. One of our labor and employment members formerly worked as part of the in-house legal team of a large nationwide hospital organization. Given this experience, the lawyers in our Labor and Employment Practice are particularly attentive to employment issues unique to the healthcare industry, including the classification of employees as exempt or non-exempt, the management of overtime, temporary employee issues, unionization issues in the healthcare setting, specialized healthcare issues arising out of whistleblower investigations and wrongful termination claims. This experience also includes extensive training of doctors and managers and day-to-day advice in addressing the unique issues that arise in a traditionally male-dominated industry in which female employees are a significant part of the workforce. The attorneys in this practice area practice solely labor and employment law, advising all clients in a comprehensive array of matters, including employment discrimination claims, traditional union labor issues, investigations, training, and practical day-to-day advice to help clients avoid the high costs of litigation. Antitrust. Our multi-disciplinary approach to the practice of healthcare includes providing clients with guidance on antitrust regulatory requirements. Our firm's attorneys advise healthcare clients on possible transaction structures and business strategies to comply with these requirements, including the guidelines set forth in the Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care. We have developed structures to minimize antitrust challenges to exclusive contracting arrangements, provider networks, joint ventures, acquisitions and other collaborations. We have advised healthcare clients on such issues as contracting practices, most-favored nation pricing, alleged exclusionary conduct, professional association activities, purchasing alliances and managed care alliances. We routinely prepare necessary filings with federal and state agencies, including Hart-Scott-Rodino filings. In addition, we have represented clients in antitrust litigation involving hospital staff privileges, group boycotts, exclusion from alleged essential practice facilities, exclusion from group purchasing organizations and attempted monopolization of a medical specialty. Employee Benefits/ERISA. Most of our healthcare clients require sophisticated employee benefits/ERISA expertise, especially in the areas of retirement plan design and implementation, employee benefits litigation, ERISA fiduciary issues, employee leasing and worker classification/independent contractor issues. The 2001 Tax Relief Act reversed a 20-year trend by offering businesses an unprecedented opportunity to redesign retirement plans to provide greater retirement benefits for highly paid employees, particularly in the context of an integrated healthcare delivery system. Our employee benefits attorneys have the experience and expertise to assist healthcare clients in implementing enhanced retirement benefits under the newly liberalized rules without running afoul of the affiliated service group problem. These lawyers also work closely with our Labor and Employment Practice on overlapping issues, such as severance pay, downsizing, collective bargaining, COBRA, family leave laws and age and disability discrimination. Executive Compensation. Our healthcare clients are acutely aware that sophisticated compensation packages are required to attract and retain key executives. Our expertise in this area facilitates the creation of plans that are tax-advantaged and that have the least financial accounting impact on earnings. We have extensive experience in the design and operation of stock option plans, restricted stock and stock appreciation rights plans and other forms of equity and quasi-equity compensation. We are also skilled at developing supplemental executive retirement plans, non-qualified deferred compensation plans and other mechanisms for highly compensated employees. Many of our healthcare clients have utilized our expertise to develop tax-qualified severance plans and deal with compensation issues in mergers and acquisitions, including rollovers of tax-qualified benefits. Intellectual Property and Technology. Our interdisciplinary intellectual property and technology group integrates with our Healthcare Industry Practice by representing a broad range of companies through every stage of their business development, ranging from the delivery of financial and clinical information systems to providing health information. We assist healthcare providers in the negotiation and implementation of software and technology licensing maintenance, transfer, development and outsourcing arrangements. We also represent companies and developers that have created healthcare applications, medical software and technology-based services. Environmental. Our Environmental Practice delivers comprehensive environmental services to our healthcare industry clients. In matters including air and water pollution, hazardous wastes, above-ground and underground storage tanks, mold, OSHA and Superfund exposure. In particular, our healthcare clients have sought our advice regarding medical and radioactive waste management and permitting, radioactive materials management and permitting, wastewater permitting, med-waste incinerator permitting and compliance audits regarding to these matters. We regularly undertake permit negotiations and appeals, compliance and enforcement matters and environmental audits, often in the context of merger and acquisition transactions, and permit transfers or reissuances in connection with those transactions. We write and publish a monthly Tennessee Environmental Law Letter. Conclusion Bass, Berry & Sims believes that our approach to the integrated delivery of services to our healthcare industry clients differentiates us from others in the legal services profession. By bringing sophisticated expertise to bear on the multitude of issues that face the highly regulated healthcare services provider, we produce cost-effective and practical solutions to difficult legal, operational and strategic issues. With our experience and background, we will continue to provide creative and pragmatic advice as new patient-provider-payor relationships evolve. << top < back

Healthcare Industry

The Healthcare Industry Practice at Bass, Berry & Sims is a broad, integrated and interdisciplinary team of attorneys that brings together the multitude of legal specialties necessary to service one of the largest, most highly regulated industries in the United States. Our firm has participated in the evolution of the healthcare services industry in Nashville, the home of entrepreneurial healthcare in America. This evolution has led us from our representation of proprietary and not-for-profit hospitals, ancillary service providers, large physician groups and long-term care providers to the development and representation of disease management companies, managed care organizations and structuring for-profit/non-profit joint ventures.

From our in-depth involvement in the industry, we have learned that the multitude of legal issues affecting healthcare clients do not fit neatly within one or two areas of legal expertise. For that reason, we have structured our healthcare practice as an integrated group by identifying and training more than 100 attorneys in virtually all areas of the firm to blend their substantive expertise with the unique demands of the healthcare industry.

Listed below are the substantive areas included within our Healthcare Industry Practice, and the Bass, Berry & Sims attorneys who devote their practices in large part to clients in the healthcare industry.

Scope of Practice

Our Healthcare Industry Practice offers comprehensive services to clients with operations throughout the United States, ranging from ongoing operational and regulatory compliance issues to government investigations, litigation, securities offerings, and merger and acquisition transactions.

These types of legal services require expertise and experience in antitrust, fraud and abuse compliance, government and private reimbursement, licensure and certification matters, physician self-referral laws, business litigation, taxation of exempt and non-exempt organizations, real estate and insurance expertise, managed care contracting, commercial and bond financings, real estate and general business and transactional matters.

Our clients reflect the broad spectrum of healthcare providers and payors and include among them the types listed below. We have found that a general understanding of the perspectives of all segments of the market is critical to advising each individual provider or payor:

Proprietary, non-profit and academic acute care hospitals and medical centers, including specialty hospitals
Ambulatory care centers, ambulatory surgical treatment centers, home health agencies and diagnostic imaging centers
Subacute care facilities, residential treatment centers, psychiatric hospitals and rehabilitation agencies
Dialysis centers, cancer centers and disease management companies
Insurance companies, health maintenance organizations, preferred provider organizations, physician hospital organizations and similar entities
eHealth companies providing IT solutions and medical education to providers and payors
Group purchasing organizations
Single-specialty and multi-specialty physician group practices
Physician practice management companies
Retirement, long-term care and assisted living facilities
Equity investors, lenders, and investment banking firms financing transactions for healthcare companies
Businesses that design, manufacture and distribute medical devices and pharmaceuticals

Attorneys. Attorneys in our Healthcare Industry Practice are active participants in numerous industry organizations and bar associations, such as the American Health Lawyers Association and the American Bar Association's Health Law Section. They frequently speak before healthcare groups as well as write and publish a periodic client newsletter, Health Law Update. The firm is a founding member of and active in the Nashville Health Care Council, which actively promotes the growth and development of healthcare companies based in the Nashville area. The chair of our healthcare practice recently served on its Board of Directors. Members of the firm have participated in international trade missions sponsored by the Nashville Health Care Council.

Healthcare Industry Services

Operational and Regulatory. Bass, Berry & Sims attorneys handle a multitude of critical healthcare regulatory and operational issues, including self-referral prohibitions, fraud and abuse analysis, licensure, certification and accreditation for healthcare facilities, certificates of need, corporate compliance programs, managed care contracting, group purchasing arrangements, HIPAA compliance and Medicare, Medicaid and third-party payor reimbursement matters. Our expertise includes specialty services such as hospitalist programs and disease management, and the difficult issues surrounding physician recruitment. We have advised many clients on the rapidly evolving and complex set of laws involving physician self-referral and fraud and abuse restrictions in order to structure transactions, joint ventures and other financial relationships to comply with federal and state laws, including those related to the corporate practice of medicine and fee splitting. We regularly assist clients with traditional operational requirements applicable to healthcare facilities, such as medical staff bylaws, staff privileges and professional liability. We also handle patient care issues involving advance directives, confidentiality, EMTALA transfers, informed consent and anti-discrimination and accessibility laws.

Legislative Matters. Our attorneys actively monitor both federal and state healthcare laws and regulations to provide clients with up-to-date information regarding important legislative developments affecting the healthcare industry. We publish a periodic client newsletter detailing important legislative and regulatory matters of interest to our clients, including alerts of new proposals that may pose risks or opportunities. We lobby on behalf of clients and industry groups with regard to legislative proposals being considered by the Tennessee General Assembly.

Mergers and Acquisitions; Capital Raising. Bass, Berry & Sims has extensive experience in mergers, acquisitions, joint ventures, private placements and public offerings involving hospital systems, long-term care facilities, ancillary service providers, independent practice associations, managed care organizations and health information and technology entities. Our engagements feature thorough due diligence reviews to uncover legal exposure in acquired entities or joint venture partners. Our expertise has provided us the opportunity to work with many investment bankers and equity and debt financing sources throughout the country. We have a depth of experience in hospital syndications and in joint ventures between hospitals and physicians and between providers and payors.

Insurance and Managed Care. We have recognized proficiency in the area of insurance and managed care organizations that has been utilized by many of our healthcare clients. Bass, Berry & Sims has represented a number of health maintenance organizations and preferred provider organizations in their formation and operation (including the representation of publicly-held HMOs), especially in connection with the requirements under state HMO statutes and insurance laws. Members of our Insurance and Managed Care Practice have advised our healthcare provider clients in their negotiations with managed care organizations and in the placement and coordination of their insurance coverages, intervening in those situations that pose material risks of loss. Along with our Litigation Practice, we implement risk management programs.

Tax. Our integrated approach for healthcare clients is also reflected in our work on tax matters involving for-profit and exempt organizations. Our attorneys routinely advise healthcare clients on exempt status issues such as private inurement, unrelated business income tax and non-profit to for-profit conversions, as well as the varied tax issues that arise in structuring taxable and tax-free acquisitions and joint ventures. Our tax expertise is also a valuable asset we provide in connection with corporate restructurings and
spin-offs.

Bond Financings. Our attorneys have a broad range of experience in both tax-exempt and taxable healthcare bond issues involving acute care hospitals, specialty hospitals, nursing homes and other healthcare facilities. We have the largest public finance practice in the state. Additionally, according to data published by Thompson Financial Securities Data, in 2004 we served as bond counsel for issues with an aggregate dollar amount of $1.64 billion. Since 2002, we have served as bond or underwriters counsel on over $730 million worth of tax exempt healthcare financings.

Commercial Transactions. The Commercial Transactions members of our Healthcare Industry Practice represent numerous healthcare clients in their relationships with banking institutions, insurance companies and other institutional lenders in a variety of financing transactions and in general commercial matters. These transactions include multi-lender credit syndications, debt placements, mezzanine financings, relationships between senior and subordinated lenders, acquisition and development of real estate, real estate and construction loans, asset securitizations, sale and leaseback transactions, equipment and synthetic leases and letters of credit. We counsel clients concerning compliance with federal and state law governing security interests in Medicare and Medicaid receivables. We have a depth of experience in dealing with healthcare businesses that have significant leverage and complex capital structures.

Labor and Employment. Bass, Berry & Sims has a broad array of experience in representing clients in the healthcare industry, ranging from nationwide representation of a large dialysis company and representation of the largest private employer in middle Tennessee (which is in the healthcare industry) to representing local and regional physician practice groups. One of our labor and employment members formerly worked as part of the in-house legal team of a large nationwide hospital organization. Given this experience, the lawyers in our Labor and Employment Practice are particularly attentive to employment issues unique to the healthcare industry, including the classification of employees as exempt or non-exempt, the management of overtime, temporary employee issues, unionization issues in the healthcare setting, specialized healthcare issues arising out of whistleblower investigations and wrongful termination claims. This experience also includes extensive training of doctors and managers and day-to-day advice in addressing the unique issues that arise in a traditionally male-dominated industry in which female employees are a significant part of the workforce. The attorneys in this practice area practice solely labor and employment law, advising all clients in a comprehensive array of matters, including employment discrimination claims, traditional union labor issues, investigations, training, and practical day-to-day advice to help clients avoid the high costs of litigation.

Antitrust. Our multi-disciplinary approach to the practice of healthcare includes providing clients with guidance on antitrust regulatory requirements. Our firm's attorneys advise healthcare clients on possible transaction structures and business strategies to comply with these requirements, including the guidelines set forth in the Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care. We have developed structures to minimize antitrust challenges to exclusive contracting arrangements, provider networks, joint ventures, acquisitions and other collaborations. We have advised healthcare clients on such issues as contracting practices, most-favored nation pricing, alleged exclusionary conduct, professional association activities, purchasing alliances and managed care alliances. We routinely prepare necessary filings with federal and state agencies, including Hart-Scott-Rodino filings. In addition, we have represented clients in antitrust litigation involving hospital staff privileges, group boycotts, exclusion from alleged essential practice facilities, exclusion from group purchasing organizations and attempted monopolization of a medical specialty.

Employee Benefits/ERISA. Most of our healthcare clients require sophisticated employee benefits/ERISA expertise, especially in the areas of retirement plan design and implementation, employee benefits litigation, ERISA fiduciary issues, employee leasing and worker classification/independent contractor issues. The 2001 Tax Relief Act reversed a 20-year trend by offering businesses an unprecedented opportunity to redesign retirement plans to provide greater retirement benefits for highly paid employees, particularly in the context of an integrated healthcare delivery system. Our employee benefits attorneys have the experience and expertise to assist healthcare clients in implementing enhanced retirement benefits under the newly liberalized rules without running afoul of the affiliated service group problem. These lawyers also work closely with our Labor and Employment Practice on overlapping issues, such as severance pay, downsizing, collective bargaining, COBRA, family leave laws and age and disability discrimination.

Executive Compensation. Our healthcare clients are acutely aware that sophisticated compensation packages are required to attract and retain key executives. Our expertise in this area facilitates the creation of plans that are tax-advantaged and that have the least financial accounting impact on earnings. We have extensive experience in the design and operation of stock option plans, restricted stock and stock appreciation rights plans and other forms of equity and quasi-equity compensation. We are also skilled at developing supplemental executive retirement plans, non-qualified deferred compensation plans and other mechanisms for highly compensated employees. Many of our healthcare clients have utilized our expertise to develop tax-qualified severance plans and deal with compensation issues in mergers and acquisitions, including rollovers of tax-qualified benefits.

Intellectual Property and Technology. Our interdisciplinary intellectual property and technology group integrates with our Healthcare Industry Practice by representing a broad range of companies through every stage of their business development, ranging from the delivery of financial and clinical information systems to providing health information. We assist healthcare providers in the negotiation and implementation of software and technology licensing maintenance, transfer, development and outsourcing arrangements. We also represent companies and developers that have created healthcare applications, medical software and technology-based services.

Environmental. Our Environmental Practice delivers comprehensive environmental services to our healthcare industry clients. In matters including air and water pollution, hazardous wastes, above-ground and underground storage tanks, mold, OSHA and Superfund exposure. In particular, our healthcare clients have sought our advice regarding medical and radioactive waste management and permitting, radioactive materials management and permitting, wastewater permitting, med-waste incinerator permitting and compliance audits regarding to these matters. We regularly undertake permit negotiations and appeals, compliance and enforcement matters and environmental audits, often in the context of merger and acquisition transactions, and permit transfers or reissuances in connection with those transactions. We write and publish a monthly Tennessee Environmental Law Letter.

Conclusion

Bass, Berry & Sims believes that our approach to the integrated delivery of services to our healthcare industry clients differentiates us from others in the legal services profession. By bringing sophisticated expertise to bear on the multitude of issues that face the highly regulated healthcare services provider, we produce cost-effective and practical solutions to difficult legal, operational and strategic issues. With our experience and background, we will continue to provide creative and pragmatic advice as new patient-provider-payor relationships evolve.

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