Physicians and other healthcare professionals entering into agreements with a medical practice, hospital or other medical provider need to assure that the agreement complies with governing law, such as the federal Anti-Kickback Statute (AKS), the Physician Self-Referral Law (Stark law), and the Civil Monetary Penalties Law (CMPL), as well as related state statutes and regulations, such as the Florida Patient Brokering Act. Government agencies, including the Department of Justice, the Department of Health & Human Services Office of Inspector General (HHS-OIG), and the Centers for Medicare & Medicaid Services (CMS), are charged with enforcing these laws.
Possible Penalties
It is crucial that any proposed arrangement complies with these laws because violating them could result in criminal penalties, civil fines, exclusion from the Federal health care programs, and/or loss of licensure. For example, being convicted of a single violation under the Anti-Kickback Statute may result in a fine of up to $25,000 and imprisonment for up to five (5) years. In addition, conviction results in mandatory exclusion from participation in federal health care programs and can have negative professional licensure implications. Because of these potentially catastrophic ramifications, it is critical to ensure that any proposed agreement passes legal muster, and therefore should be reviewed in advance by an experienced health care attorney.
Physicians and other healthcare professionals should also ensure that any agreement does not unfairly restrict their future earning potential and professional options. Restrictive covenants and non-compete clauses within employment agreements can limit, for example, the physician’s freedom to practice medicine within a specific geographic area for a specified amount of time. They can also restrict the physician from taking patients with them if they choose to leave a practice and relocate. Similarly, broadly worded non-solicitation prohibitions can unduly hinder a physician’s ability to even generally market his/her professional services following the termination of such an agreement, so such provisions must be carefully reviewed and crafted.
Seek The Advice of Counsel
The attorneys at Nicholson & Eastin, LLP regularly review and negotiate physician and related agreements to help ensure compliance with governing laws and to advise clients on how best to maximize their current and future earning potential, as well as how to best protect themselves in the event the proposed arrangement should be challenged by government authorities, or should be breached or terminated in the future.
Please do not hesitate to contact us for a consultation regarding any existing or proposed contractual arrangements.