More than 70% of medical practices are committing healthcare fraud, but they are not all criminals. According to healthcare attorney Mathew J. Levy, Esq., Shareholder and Director of Weiss Zarett Brofman Sonnenklar & Levy, PC and co-chair of the Firm’s corporate transaction and healthcare regulatory practice, many providers are simply using out of date codes, or may have been flagged by an insurance company algorithm because their billing practices are outside of the statistical norm. When does a practice need outside legal assistance? Mr. Levy breaks down a few common scenarios and offers valuable advice.
Participating Medicare providers already experiencing financial hardship due to the pandemic would be further hit by a 2% payment cut until Congress takes action next month with the passage of a sequester fix. To address this issue, the Centers for Medicare & Medicaid Services (“CMS”) is temporarily pausing Medicare payments to providers.
CMS recently announced “Temporary Claims Hold Pending Congressional Action to Extend 2% Sequester Reduction Suspension” in a special news edition of its MLN Connects newsletter, available here. CMS’ notification instructs Medicare Administrative Contractors (“MACs”) to temporarily pause all claims with dates of service on or after April 1, 2021, for a short period, without affecting providers’ cash flow.
Additionally, the change is intended to minimize the number of claims that MACs must reprocess if Congress were to extend the suspension. Further, CMS assures that if necessary, the MACs will automatically adjust. Additionally, the MACs will reprocess any claims that were paid with the reduction applied.
If you are a participating Medicare provider, you can find your MAC Provider Contact Center at this website.
Importantly, if you are a provider seeking clarification on how these changes may affect you, you can contact Mathew J. Levy at 516-926-3320 or firstname.lastname@example.org.
Mathew J. Levy is a Shareholder/Director of Weiss Zarett and co-chairs the Firm’s corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in defending healthcare professionals in actions brought by state licensing authorities and federal agencies. Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits. Mr. Levy has successfully structured and negotiated joint-venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements, and commercial leases.
Zoila Sanchez, J.D., M.P.H. joined Weiss Zarett full-time upon graduating with her Juris Doctor degree from the Maurice A. Deane School of Law at Hofstra University. During law school, Ms. Sanchez served as a Legal Clerk with the U.S. Department of Health and Human Services Office of Counsel to the Inspector General in Washington, DC, where her work focused on health care fraud and abuse. Ms. Sanchez has experience in supporting Weiss Zarett’s business and health care law and litigation practice areas.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.
These days, more and more companies are requiring their employees to sign restrictive covenant agreements. These are agreements that are designed to protect a business’s legitimate interests and assets from being misappropriated or improperly utilized by a former employee. Such agreements often contain non-competition provisions, which may provide that an employee is prohibited from working with a competitor of the employer or starting a competitive business during employment and for a period after his or her employment ends.
Non-compete restrictions are common in the context of physician employment contracts, which are discussed here: https://weisszarett.com/2020/06/01/understanding-physician-employment-contracts-3/. In addition, in recent years, the NYS Attorney General’s office has investigated suspected misuse of noncompetes for rank-and-file employees, and has reached agreements with employers to stop using non-competes for employees who do not have access to trade secrets or confidential information.
New York resident individuals who have signed non-compete agreements and are transitioning between employers or starting a new business venture must analyze the extent of the applicable non-compete restrictions and whether such restrictions may be enforceable under New York law. In addition, the prospective employers or business partners of such individuals must be equally diligent regarding those non-compete restrictions.
New York courts have noted that there are powerful public policies weighing against depriving people of their ability to earn a living, but have also held that non-competition agreements are enforceable so long as they meet an overriding limitation of reasonableness. For a non-compete restriction to be deemed reasonable under New York law, it must meet each of the following three conditions:
1. The restriction is required for the protection of the legitimate interest of the employer;
2. The restriction does not impose undue hardship on the employee;
3. The restriction is reasonable in time period and geographic scope; and
3. The restriction is not injurious to the public.
In addition to the above items, former employers seeking to enforce a non-compete agreement will need to evidence that the employee was given consideration, i.e., something of value, in exchange for agreeing to the non-compete restriction. Examples of consideration include new employment, a promotion, garden leave payments, a raise or any form of bonus compensation. Continuing employment (“sign this or you’re fired”) is also valid form of consideration for at-will employees. The value of consideration given to the employee will influence any determination of the reasonableness of the non-compete restriction.
In that regard, an additional critical issue is the skill set of the employee. New York courts will generally uphold a non-compete restriction against a former employee whose services are “unique or extraordinary”. To meet that standard, it would need to be shown that the services are irreplaceable or that the loss of services would cause irreparable injury to the employer.
Geography, duration and scope are important factors for establishing the reasonableness of the non-compete restriction. None of those factors, however, should be reviewed independently. For example, a New York court upheld an unlimited non-compete restriction in a case where the restraint was limited to only a small geographic area. The scope of the restriction, however, generally cannot be overbroad, such as the restricting of employment in an entire major industry without regard to the specific type of services provided by the individual.
Employees in transition, along with their future prospective employers or business partners, should carefully assess any applicable non-compete agreements with a qualified attorney to minimize or avoid any potential liability. Each situation is unique and will merit its own considerations in evaluating the reasonableness of the non-compete restriction.
Weiss Zarett provides legal counsel and solutions to businesses and individuals for a broad variety of corporate law and employment law matters. If you need guidance with a matter concerning a current or prospective non-compete agreement, please email Mauro Viskovic, Esq. at Mviskovic@weisszarett.com or call us at (516) 627-7000.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care and financial services industries, including corporate and transactional matters, employment, civil and administrative litigation, regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.
On Tuesday, April 6, 2021, Mathew J. Levy, Esq. will be participating in a DC-NP integration webinar. The presentation is about Chiropractors and Nurse Practioners structure-integration, set-up, documentation and compliance.
The event will take place from 2 PM to 3 PM EST followed by a question and answer period.