As noted in previous必威官网betHealth Care Law Today blog posts,我们已经看到了私募股权资本重组交易在骨科的上升。我们预计这一趋势将继续下去,and to pick up pace,as the economy remains robust and the appetite for the most lucrative physician practices increases.When coupled with an increasing maturation of orthopedic practices,交易量几乎肯定会增加。

This expected transactional volume likely means increased competition for the larger practices and,thus,larger deals.Competition translates into higher multiples on projected cash flows and higher prices.With this will come increasing scrutiny on issues that have the potential to hamper post-deal cash flows.Orthopedics is one of the few such specialties that lends itself to ancillary income,through ownership of ambulatory surgery,成像,physical therapy,以及耐用医疗设备(DME)更不用说与医院的安排涉及医疗管理,共同管理,等。These arrangements,虽然有益,此外,还存在监管风险,任何老练的投资者都希望了解这一风险,以努力控制收盘后现金流的下行压力。

Following is a brief discussion of some common areas that anyone engaged in these transactions should investigate.

Anti-Kickback Issues

联邦反回扣法(AKS)规定,故意和故意提供,pay,solicit or receive remuneration,in cash or in kind,in order to induce or reward the referral of business reimbursable under the Federal 必威官网bethealthcare programs (e.g.,医疗保险和医疗补助)。骨科交易中最常见的AKS风险通常出现在集团或其医师的门诊手术中心(ASC)投资中。We often see private equity investors take substantial stakes in ASCs owned by practices or physicians,因此,AKS的风险与这些投资者有关。In this regard,it is worth noting that the ASC investments generally do not implicate the Stark Law (discussed below) because ASCs are not providing items or betway体育appservices that are considered"designated 必威官网betbetway体育apphealth services"(DHS) subject to the Stark Law.

因为它的宽度,the AKS has a number of"safe harbor"regulations that provide investors with protection from the ambit of the statute so long as the arrangements are structured to meet certain regulatory requirements.These requirements focus on issues such as the types of investors (e.g.,physicians or hospitals),无论ASC是否是医师投资者实践的延伸,whether or not the physician borrowed money from the ASC or his or her fellow investors to acquire the investment interest,等。遵守要求通常并不复杂,but it is worth noting that the failure to meet one or more requirements,因此未能达到安全的港口保护,does not render the arrangement illegal but,rather,进行更深入的分析,以确定其被调查和可能被起诉/制裁的风险。


  • 医生是否同意他或她的兴趣以换取将来的转诊??
  • Did the physician pay for his or her interest and,if so,was the payment equivalent to the fair market value of such interest??
  • Did anyone loan the physician the money to acquire the interest,而且,if so,whom??
  • 医师的回报与他或她在ASC中的所有权权益百分比成比例吗??
  • 医师是否定期执行在ASC中执行的程序,而且,if so,what percentage of the physician's ASC cases are performed in the ASC under consideration??
  • Under what circumstances must the physician sell or surrender his or her ownership interest in the ASC??
  • ASC是由医师单独拥有还是由集团机构拥有,if so,是否有不使用ASC的业主??
  • Does the ASC bill"out of network,“而且,if so,ASC的计费和收款实践是否符合有关商业保险计费的州法律??
  • What sort of arrangements does the ASC have with anesthesia providers,例如,麻醉师是否为自己的专业费用开单,或是否通过ASC或集团分包服务,betway体育appwhich then bills for them??
  • If the anesthesiologists are subcontracted through the ASC or group,are the fees paid to the anesthesiologists consistent with fair market value??
  • Where the current physician owners are reducing their investment percentage in favor of a private equity investor,is there an earn-out that is arguably based on the volume or value of future business referred by such physicians??

Answers to the above questions,as well as a host of others,will help frame any issues that may be present with respect to an ASC investment in connection with a recapitalization transaction.

Other ASC risks can be present with respect to relationships the group may have with local hospitals through medical directorships,随叫随到的安排,共同管理协议和其他涉及影像服务或物理治疗的辅助安排。betway体育app这些安排中经常遇到的问题是,医生提供的服务未能支付公平的市场补偿,betway体育app或提供不必要或重复的服务。betway体育app

此外,the past decade saw the advent of the formation of medical device resellers by physicians.医生们成立了公司来购买所谓的医师偏好项目,“such as screws,引脚,脊柱装置,partial or whole replacement joints,etc.,from the manufacturer and then re-sell them to the hospital.如果结构不合理,these transactions can present AKS risks and have come under scrutiny by the United States Senate Finance Committee (which has jurisdiction over the Federal 必威官网bethealth care programs) and certain hospital purchasers.

Other issues can arise in the event the group has sold a service line,such as physical therapy or imaging,给一个独立的服务提供商,它已经融入到实践中,通常通过同一地点,并向该执业机构提供与之前提供的服务相同的服务。这些安排可能会引发问题,即支付给医师组的购betway体育app买价格是否为合法的,freestanding business or simply for the captive referrals of the group,to be enjoyed by the service provider.

Stark Law Issues

The Stark Law is a federal anti-referral statute that prohibits certain referrals by a physician of DHS to any entity with which the physician has a financial relationship whether through ownership of the entity or a compensation arrangement with the entity.该实体也被禁止支付医疗保险或,在某些情况下,针对此类转诊的医疗补助。这一广泛的禁令,however,has a number of exceptions that allow for such referrals so long as the exception is fully met.最常见的DHS,in the context of orthopedics,是图像服务,betway体育appphysical therapy betway体育appservices,DME,矫形术。

斯塔克定律引起投资者的关注,因为医生将DHS转介给他或她自己的团队实践可能牵连到该定律,specifically when the practice owns and bills for betway体育appservices such as imaging,physical therapy,二甲醚和矫形器。违反斯塔克法可能导致转诊到诊所非法,并可能否定诊所对医疗保险和医疗补助的账单(因为如果违反斯塔克法记账,则不支付账单)。requiring repayment to the Centers for Medicare & Medicaid betway体育appServices (CMS) along with possible penalties and fines.此外,the practice can find itself in violation of the Federal False Claims or Civil Monetary Penalties Acts,他们有自己相当严厉的惩罚。

To avoid these penalties,and to determine whether or not the group under consideration is at risk for violations of the Stark Law,one must work their way through a number of issues.The in-office ancillary betway体育appservices exception protects referrals of most ancillaries (excepting most DME) within a group practice,不管转诊是来自业主还是受雇/签约医生。in order to take advantage of this exception,the group must meet all of the components of Stark's definition of"group practice,“including its rules on how the group may compensate its physicians.Because of the potentially disastrous consequences of a group not meeting the definition of"group practice"and thereby not being able to use the in-office ancillary betway体育appservices exception,we often advise that referrals bybona fideemployed,非业主医师,meet the"就业例外,“独立承包商医生的推荐符合个人服务安排的例外情况。Note that the requirements of the definition of"group practice"and the various exceptions are well beyond the scope of this discussion,but should be discussed,深入地,律师对他们很了解。

The foregoing pertains to referrals for ancillaries within the group;however,because orthopedic physicians often perform cases in a hospital setting,it is also important to review arrangements the group has with any of its hospital partners.这主要是因为根据斯塔克法律,住院和门诊医院服务由医生提供,并计入医疗保险也被视为DHS。betway体育appSince the Stark Law considers a"补偿安排to be a direct or indirect financial relationship implicating the Stark Law,骨科医生或其团队与医院之间的共同安排可以创建一个direct compensation arrangement"或“indirect compensation arrangement"在转诊医生和医院之间。Thus,空间或设备租赁安排等安排,医疗主管,随叫随到的安排,共同管理安排,and joint ventures between a hospital and a group (or its physicians) involving imaging,physical therapy or DME can implicate the Stark Law with respect to referrals by the group or its physicians.通常有一些例外情况可以用来保护这些安排,but the analysis can be complicated,尤其是一个团体支付给其中一个医生的补偿是否会产生indirect compensation arrangement"with a hospital.


It is common (and highly recommended) for acquirers to undertake audits of the coding and billing practices of acquired groups.Persistent mistakes in coding and the billing of procedures or betway体育appservices can affect the quality of a practice's earnings,to say nothing of invoking compliance risks which may not otherwise surface until after the deal has closed.Common errors in orthopedic practices can include billing for physician assistants,即。,将其服务计费为”betway体育app事件“没有适当监督的医师服务以及在办公室附属服务如影像学或物理治疗方面的不适当的监督水平。betway体育appWe often recommend that a practice consider its own billing and coding audit before pricing the deal to ensure against surprises after a letter of intent is signed,at which point the parties are likely to find themselves engaged in discussions regarding price concessions.


The likely volume of orthopedic deals has the potential to create pricing competition resulting in robust multiples.This pricing environment will put pressure on the review of potential legal risks.建议考虑交易的集团和投资者通过上述问题来确认集团收益的质量,并避免在任何交易结束后出现令人不快的意外。