Health Care

We possess substantial experience advising clients on responding to draft audit reports and fighting disallowances. We advise hospital clients in addressing third-party reimbursement and billing errors. We assist hospital, nursing home, and ambulatory care clients with developing and implementing audits involving third-party reimbursement. We have worked with numerous clients on audits, assisted them in repaying overpayments, and advised them on questions of reporting misconduct to the OIG. We have also represented clients in OIG audits.

The attorneys of our practice group have also drafted numerous self-disclosures for health care clients, including hospitals, physician practices, and OPWDD/OMH facilities/organizations. We have experience in all aspects of submitting self-disclosures for situations including practices not meeting billing or documentation standards for claims and thus violating the FCA, Stark violations for excessive physician compensation, payment of program dollars to excluded individuals, as well as others. 

Our team of litigators has extensive experience in handling commercial litigation before federal and state courts and administrative tribunals, including breach of contract matters, construction litigation claims, unfair competition and antitrust claims, patent, trademark and trade secret matters, insurance coverage disputes, and tax, land use and regulatory matters. Because of the firm’s size and resources, Our litigators are able to respond promptly, whether affirmatively or defensively, to the demands for preliminary court action that frequently are asserted in commercial litigation, such as temporary restraining orders, preliminary injunctions, and other ex parte requests.

Our litigators are also experienced and skilled in alternative dispute resolution, counseling, and settlement, and recognize that these approaches often are desirable and in the clients’ best interests.

Our health care attorneys routinely provide compliance advice and services to our clients, including policy development, contract review, advice about fraud and abuse laws, response to government audits and investigations, qui tam litigation, self-reporting of overpayments to federal and state health care programs, and reimbursement issues. Our health care practice also has tremendous depth in government relations. Attorneys in the Albany office interact regularly with state agencies on behalf of our clients, including the New York State Attorney General’s Office and the Department of Health.

Our clients also rely on us for representation in emerging but critical areas of social service and health care delivery as they grapple with the major transitions underway in the health care delivery system. Specifically, we advise our clients about quality of care and patient safety issues, telemedicine and telehealth, and new care delivery and reimbursement models. We are one of the leading providers of legal services to build the integrated delivery systems mandated by DSRIP. 

Managed care is becoming more and more prevalent in today’s health care marketplace and Bond attorneys are routinely involved in the preparation and negotiation of managed care contracts. We have experience in the formation of managed care entities, representing an entity that acquired two lines of HMO business, obtained regulatory approvals from the Department of Health and the Department of Financial Services, formed a new HMO, and acted as its general counsel until it was taken over by another HMO. We are regularly reviewing managed care contracts for long term care providers. We recently played a key role in the development of the Health Department’s model managed care contract for the Consumer Directed Personal Assistance Program.

We also advise clients on how to create integrated delivery systems among various providers to achieve business objectives while meeting all legal requirements.

Our attorneys are also experienced in drafting, negotiating, and, if necessary, enforcing contracts with third party vendors. We also regularly provide counsel on choice of entity decisions, buy-sell agreements, corporate governance, and bylaws.

Bond attorneys have a great deal of experience with respect to the varied and complex issues that arise when beginning a company or forming a spin-off. We advise both commercial entities and not-for-profit entities in connection with the founding and operation of separate business enterprises for the exploitation of unique technology or product lines. Bond attorneys also have extensive experience in negotiating technology licensing agreement with start-up companies or for start-up companies.

We assist health care providers across the continuum of care to tackle the issues presented by the major transition underway in health care delivery, focusing on the legal and strategic challenges posed by new care delivery models - governance, corporate transactions, value-based payment and health care quality, corporate compliance, data privacy, cybersecurity, complex contractual relationships, and federal and state health care reform.

We represent leading entities and participating providers in the Delivery System Reform Incentive Payment Program (DSRIP). We assist our clients in identifying and implementing strategies to achieve their business goals and manage the demands of regulatory oversight and compliance.

Numerous attorneys in our firm have a great deal of experience in fraud and abuse matters. Our attorneys have defended against false claims act allegations in both state and federal courts and have represented corporate providers in grand jury and criminal investigations.

We have advised numerous health care clients on the establishment and implementation of compliance plans, and in the application of the fraud and abuse laws both in the structuring of transactions, and when those laws might have been breached.  

We have also prepared clients for audits, defended clients through audits, and successfully challenged the results of those audits. We have guided clients through self-disclosures. We have conducted internal investigations for clients. We have successfully defended clients in qui tam actions, and in both state and federal enforcement actions.

Our health care practice has tremendous depth in government relations. Attorneys in our Albany office interact regularly with state agencies on behalf of our clients, including the New York State Attorney General’s Office and the Department of Health.

Guardianship proceedings are often required where an individual has not designated a health care proxy or provided for a power of attorney.

Bond has developed decades of experience in representing institutional and non-institutional providers in petitioning for guardianship in cases involving a lack of responsible representatives. We also represents clients in estate matters where claims must be filed for recovery of amounts owed by deceased individuals or where clients are designated as beneficiaries under a will or trust.

We assist many health care institutions and practices with implementation of HIPAA, and our health care clients regularly seek our advice on nuances of ongoing HIPAA compliance. Our attorneys lecture on HIPAA and HITECH issues and have provided training to clients on these issues. We have also advised clients on the development and implementation of their HIPAA compliance plans. HIPAA questions are a frequent occurrence for health care providers. Our attorneys often find themselves answering our clients’ questions in these areas.

Our multi-disciplinary group also has experience with counseling clients on compliance with federal and state privacy laws, including FERPA and the Gramm-Leach-Bliley Act, as well as federal and state data breach notification laws and HIPAA. The members of the practice also assist clients in navigating cyber threats and on-going challenges by:

• Developing tailored policies and guidelines for client cyber governance, data breach preparedness, and compliance with federal and state notification and accountability laws;
• Advising clients of potential and actual liabilities for data breaches, security failures, and counteroffensive measures; and
• Assessing clients’ vulnerabilities and risks, auditing existing incident response plans, procedures and protocols, and recommending improvements.

As part of our client commitment, we keep pace with rapidly changing immigration laws and growing customer expectations by locating ourselves at the constantly expanding frontier of immigration laws. In this regard, we integrate and utilize advanced office technology into our daily operations for document creation, client case management, communication and internal coordination. This allows us to successfully manage client case work that ranges from a brief, simple process to a long-term complex case.

Our immigration attorneys regularly advise, prepare and submit nonimmigrant (temporary) petitions and employment-based immigrant (permanent) petitions on behalf of clients. Our immigration attorneys also assist in the preparation and counseling of nonimmigrant petitions for dependents of staff, as needed and as deemed appropriate by our clients. In addition, we have counseled our clients regarding proper visa selection options for employees and prospective employees, I-9 compliance issues, and applicable government procedures and pitfalls related to employing foreign nationals.

Bond labor and employment law department has represented institutional health care employers in:

• Drafting and reviewing personnel policies
• Employment discrimination
• Labor relations
• Government regulation
• Management training and counseling
• Responding to union organizing attempts
• Contract negotiations
• Employment law litigation
• Drafting and evaluating individual employment contracts

Bond lawyers have provided our clients with consultative services and advice, as well as direct participatory services in areas such as:

• Advising clients on issues presented by reorganizing, reengineering, downsizing and restructuring the workforce
• Preventive personnel practices, including analyses of problem areas, determination of policies and practices
• Preparation for contract negotiations with labor organizations
• Labor negotiations, including determination of objectives and strategies, effective use of mediation, current negotiation trends, court and arbitration decisions
• Processing grievances at any stage of the grievance procedure, including arbitration
• Representation in proceedings before governmental and administrative agencies, including OSHA, EEOC, State Division of Human Rights, Federal and State Wage and Hour Divisions, NLRB, etc.
• Orientation and instruction of administrative personnel regarding personnel practices, governmental regulation, contractual obligations and procedures, grievance handling, personnel management and evaluation
• Personnel administration affecting union and non-union employees
• Preparation of policy and procedures for supervisors including related forms to facilitate record keeping and maintain personnel programs and practices
• A full range of litigation services before juries and judges in state and federal courts
• Advising clients of the labor and employment implications involved in a merger, consolidation or successorship situation

We are frequently asked to counsel our healthcare clients on the best and proper interpretation of policies and contract clauses under unusual and unforeseen circumstances. This effort is neither mechanical nor scientific, but rather, requires a broad base of work in the human resource/management field, and creativity and familiarity with the client’s mission and strategic objectives.

New York requires that all health care be furnished by duly licensed, certified or approved organizations. The certificate of need (CON) process generally refers to those laws that require entities to submit establishment or licensure applications in order to engage in certain health care activities. We provide assistance in all aspects of CON and licensure counseling, including assistance in the drafting and submission of all legal documentation regarding such applications, as well as the provision of advice and recommendations about operational requirements for each type of provider service.

We also assist licensed health care professionals, including physicians, dentists, oral surgeons, advanced practice providers and nurses, in navigating governmental investigations and disciplinary proceedings. Our attorneys prepare health care professionals for interviews by representatives of the New York State Department of Education and the Office of Professional Medical Conduct and have represented them at such interviews and in disciplinary proceedings. We have also interfaced with representatives of the New York State Department of Education and the Office of Professional Medical Conduct on behalf of health care professionals. Our multidisciplinary group also has experience assisting hospitals and health care systems with preparing, filing and prosecuting disciplinary proceedings against providers accused of wrongdoing.

Our attorneys are regularly involved in Medicaid issues. Besides compliance issues, audits and investigations, Medicaid issues arise in a number of ways, such as coverage, eligibility, exclusion lists and reasonable costs. The lawyers of our health care group have years of experience advising clients in these areas. Our attorneys also have extensive experience representing clients in Medicaid rate appeals and in defending clients in fraud and abuse investigations.

Our attorneys are regularly involved in Medicare issues. Besides compliance issues, audits and investigations, Medicare issues arise in a number of ways, such as coverage, eligibility, exclusion lists and reasonable costs. Medicare rules can relate to discharge and to judgments regarding patient decision-making. The lawyers of our health care group have years of experience advising clients in these areas. 

Our lawyers routinely work with health care clients undergoing organizational change to ensure compliance throughout the process, regardless of whether the change involves a merger, stock acquisition, assets transfer, alliance, relocation, bankruptcy, or any of the other contexts in which organizational changes routinely occur. 

We have advised and guided clients in the health care sector on numerous transactions including the purchase of physician practices and the merger of a not-for-profit community hospital with a State-operated academic medical center. We also have extensive experience in tax and business structuring, including straight asset and stock sales, taxable and tax free mergers, spin offs and corporate liquidations. 

A number of our attorneys have been involved in the complex issues presented in hospital reorganizations. We have been successful in representing healthcare institutions in strategic planning and corporate reorganization matters because we listen to our clients and devise creative strategies to achieve their objectives; we never assume that the only way to achieve the client’s strategic planning objectives is by reorganizing corporate entities.

Our health care attorneys advise non-profit entities in connection with the formation and operation of separate business enterprises for the exploitation of unique technology or product lines. The formation issues for a not-for-profit organization establishing a start-up company would include advising the board of directors with respect to unrelated business income tax issues, private inurement issues, and conflict of interest issues and addressing general issues applicable to all business entities, including corporate governance, contracts, financing, raising capital and the like. 

Our attorneys are familiar with partnership tax issues that abound in the startup arena, since most companies start out as limited liability companies, which are taxed as partnerships.  We have counseled clients on ways to avoid taxing partners on the acquisition of LLC interests in exchange for services. 

Our attorneys also have experience with forming so-called “captive” Professional Corporations - professional corporations that are under the control of a 501(c)(3) organization. The captive P.C. is formed in such a way that it may carry on professional activities that the 501(c)(3) organization cannot, yet it is structured so that the 501(c)(3) organization may control the captive P.C. without jeopardizing its tax-exempt status with the IRS. 

Our attorneys have extensive experience coordinating and advising clients in the health care industry with respect to all aspects of substantial, long-term, real estate development projects. Our clients include hospitals, nursing homes, educational institutions, municipalities, agencies, office complexes, private practices and health care providers in general.

Our real estate attorneys have extensive experience handling project development financing, including industrial development revenue bonds, and other public sector financing participation and incentives, real property tax assessment review, construction contracts, architects agreements and other aspects of construction projects. In addition to handling acquisitions and sales of real property, our attorneys assist clients with other aspects of development including financing, leasing, subdivision, ground leasing, and the negotiation and drafting of easements, rights-of-way, license agreements, and comprehensive declarations of reciprocal easements and restrictive covenants.

Our attorneys have acquired years of experience in identifying third-party liability so that the proper source of payment ultimately pays for health care. We have been involved in revenue loss recovery affecting all facets of operations, including A/R assessments, financial turnaround and in developing procedures to ensure proper reimbursement from managed care organizations as the system transitions to collaborative care models of payment.

In addition, we assist hospital, nursing home, and ambulatory care clients with developing and implementing audits involving third-party reimbursement. We assist clients in repaying overpayments and advise them on questions of reporting misconduct to the OIG. We have also represented clients in OIG audits.

Our attorneys have extensive experience in tax and business structuring, including straight asset and stock sales, taxable and tax free mergers, spin offs and corporate liquidations.

We are familiar with partnership tax issues that abound in the startup arena, since most companies start out as limited liability companies, which are taxed as partnerships.  We have counseled clients on ways to avoid taxing partners on the acquisition of LLC interests in exchange for services.  

Our attorneys also have experience with forming so-called “captive” Professional Corporations - professional corporations that are under the control of a 501(c)(3) organization. The captive P.C. is formed in such a way that it may carry on professional activities that the 501(c)(3) organization cannot, yet it is structured so that the 501(c)(3) organization may control the captive P.C. without jeopardizing its tax-exempt status with the IRS. 

In order to provide effective telehealth services (including New York’s distinct categories of “telemedicine,” “telemental health” and various forms of “telepractice”), health care providers must have the ability to provide quality care and also be able to implement additional protocols related to cybersecurity, privacy and reimbursement. There are also unique challenges that can arise in areas of credentialing, licensure/scope of practice and patient consent. 

Who We Serve

Our health care practice group works closely with clients who provide medical and/or behavioral health care services through electronic communications. We have assisted many clients (including hospitals, medical groups, psychological practices and OPWDD providers) in establishing and expanding telehealth services and advise them on the ever-changing state and federal laws that govern issues of security/privacy, insurance coverage and reimbursement under Medicaid and Medicare.

We have developed the following list of FAQs to help give you an overview of some the major questions we deal with on a regular basis. Please visit our “Resources” and our “Articles” sections/links to learn more.

* Please note that, during the COVID-19 pandemic, state and federal governments have relaxed or otherwise modified the applicable regulations or guidance. Updated information and relevant resources can be found here: COVID-19 Telehealth Updates.

Resources

Our experienced team of attorneys works with clients on a number of regulatory and transactional issues that arise in the context of telehealth. We have developed the following list of FAQs to give you an overview of some the major questions we deal with on a regular basis. You will also find links to resources that you may find helpful. 

Q: What is telehealth?

A: Telehealth is, at its core, the ability to provide health care services remotely. However, only certain kinds of telehealth are reimbursable. For instance, the New York State Medicaid program limits telehealth coverage to telemedicine (meaning synchronous, two-way electronic audio visual communications to deliver clinical health care services), store and forward technology (including certain digital images) and remote patient monitoring devices/systems.

Q: How are telehealth services reimbursed? What about insurance for patients?

A: Medicaid and Medicare have specific requirements for the types of services that are reimbursable and the rates for such reimbursement. These rates are subject to change each year. Additionally, New York State requires commercial insurers and the Medicaid program to provide reimbursement for services delivered via telehealth if those services would have been covered if delivered in person. 

Q: How do I find the appropriate software or equipment? 

A: Telehealth can be provided through a number of modalities, ranging from audio-video communications, remote monitoring and store-and-forward. The exact equipment and software will likely depend on the modality and the nature of the services. For example, in some settings, NYS agencies encourage or require the use of special cameras and specific internet security settings. Many providers enter into agreements with third-party vendors who license the software to the providers. These agreements should address not only the services and use of software during the contract, but also key items including, but not limited to, the location of and ability to access data, and the terms under which security breaches will be addressed to comply with HIPAA and New York’s SHIELD Act. Given the unique complexities that can arise at these intersections of health care and technology, it is recommended that providers engage an experienced telehealth attorney to review these contracts. 

Q: I provide health care services through a private practice. How is the practice of telehealth regulated? Can I provide services through telehealth?

A: Telehealth is regulated in large part by each state. Among other things, this means that professionals should be familiar with the requirements of each state in which they are providing care, which is based upon the location of the patient. Most states require that the professional be licensed to practice in the state in which the patient resides before engaging in telehealth services. 

In New York State, many of the professions regulated/overseen by the New York State Education Department (NYSED) are able to engage in telehealth services. NYSED has provided basic guidance to help you understand and plan for providing telehealth services. For those providing services in certain settings that require licensure/approval of state agencies, there may be additional requirements that apply; for example, services provided at/through a site licensed by OMH, OASAS, or OPWDD should consult that agency’s guidance for additional details. (see below for links to applicable guidance). 

Q: How does telehealth work for behavioral health care providers?

A: Behavioral health care providers – including private practitioners as well as those who provide services through OPWDD, OMH, OASAS– are able to use telehealth to increase access to care by allowing individuals to receive services remotely, often at the patients place of residence. Depending on the specific services being offered and the agency regulating those services, there may be specific guidance that applies. For additional information, please click the dropdown box/link below.

• OMH – Telemental Health

The Office of Mental Health utilizes its own form of telehealth, called telemental health. OMH regulations govern the provision of telemental health services by OMH programs licensed or designated pursuant to Article 31 of the Mental Hygiene Law. Providers wishing to utilize telemental health services by/through OMH programs licensed or designated pursuant to MHL Article 31 must receive approval (which requires filing an attestation and other materials to OMH). Services are required to be delivered from a secure site/location which ensures the minimum standards for privacy for recipient-clinician interaction are met; psychiatrists and nurse practitioners in psychiatry may deliver services from a site located within the United States, including from a space in a place of residence approved by the Office of Mental Health and mental health practitioners may deliver services from a site located within the State of New York, including from a space in a place of residence approved by the Office of Mental Health. 

For more guidance, see OMH’s 2019 guidance. 

• OPWDD - Telehealth

The Office for People with Developmental Disabilities allows clinic treatment facilities to serve individuals through providing access to clinical services through telehealth. The use of telehealth was added to OPWDD regulations in 2018 in order to increase access to care by allowing individuals to receive services remotely, rather than in the home or another costlier and/or more restrictive settings. The person receiving services may be at his/her residence while the provider is at an OPWDD site (or a certified satellite site). Currently, independent practitioner services for individuals with developmental disabilities (IPSIDD services) are prohibited from being delivered via telehealth. 

• OASAS – Telepractice

The Office of Addiction Services and Supports uses the term “telepractice” to refer the use of two-way real-time interactive telecommunication system for the purpose of providing certain addiction services at a distance. In order to provide telepractice, a program must have received an operating certificate “designation” from OASAS, and providers/programs must also receive approval to provide such services. Services may be provided via telepractice by a practitioner from a site distant from the location of the patient, provided both practitioner and patient are located in sites approved by the Office pursuant to a plan submitted by a certified program in application for a telepractice designation. 

General guidance is available here.