Getting Things Done for Health Care Providers

Health care provider organizations turn to McNair for help with the full spectrum of their operating, regulatory, administrative and dispute resolution needs. Because we focus on representing health care providers – general care and acute hospitals and health systems, nursing homes and long-term care facilities, physician organizations and clinics – we have the depth of experience to address your specialized concerns, with none of the conflicting interests that can rise from representing insurers or patients. On behalf of provider clients our lawyers handle precedent-setting litigation, facilitate complex business combinations, and provide regulatory and public affairs advocacy at the highest levels of state government.

Top-flight health law counsel comes from top-ranked health law lawyers, and no firm based in the Carolinas surpasses McNair’s accomplishments. Three members of our team have been selected by their professional peers for inclusion in The Best Lawyers in America ^® 2008, and other publications such as Chambers USA and Euromoney’s Guide to the Leading U.S. Healthcare Lawyers. We also have colleagues who are widely regarded as leading practitioners in such areas as medical malpractice defense, securing certificates of need, and public policy advocacy on behalf of such organizations as the foremost association of family practice doctors. By drawing on McNair’s firmwide capabilities, our health care lawyers have the insight and capabilities to effectively address health care providers’ business and legal needs.

Facilitating Business Combinations 

Provider organizations trust McNair to make sure that mergers, acquisitions, joint ventures and contracting arrangements comply with all aspects of antitrust requirements and related fraud and abuse enforcement and regulation. That includes counsel regarding Federal Trade Commission investigations of alleged price-fixing and anticompetitive practices.

You’ll get practical advice on how to create mergers of hospital facilities as well as ventures between hospitals and providers with the cost efficiencies you want and the regulatory compliance you need. In any transaction you’ll get complete assistance in structuring arrangements to comply with the U.S. Department of Justice and the FTC's Statements of Antitrust Enforcement Policy in the Health Care Area. Hospitals rely on our excellent working relationships with the regulatory authorities to secure approval of state health regulators and similar authorities. Your hospital or medical center will be properly positioned to respond to questions, investigation or litigation of antitrust concerns over delivery of health care services.

How we Get Things Done
McNair played a key role in the creation of one of South Carolina’s leading health care systems, with a major presence in two counties. Because it involved a combination of a private religious institution with one that was government-owned, the transaction was a multi-year process that involved the full range of our firm’s practices. For example, after being formed, following extensive negotiations among former competiters, the new entity required and obtained 501 (c)(3) status, the only Certificate of Public Advantage ever issued in South Carolina, anti-trust clearance, appropriate disposition of  outstanding financings of the two parties, and favorable judicial disposition of constitutional issues.

Securing Certificates of Need

One of the biggest challenges facing health care providers in today’s cost-sensitive market environment is securing certificates of need and certificates of exemption from state governing bodies that oversee and approve facility expansion. Whether your health care operation intends to build, add to or modify its existing physical plant, or undertake a significant new capital expenditure, McNair can help you at every step in the regulatory approval process.

You get comprehensive advice on compliance strategies for all significant certification threshold issues, including permit applications, exemption requests and cost overrun determinations. Our lawyers will represent you before the state planning board responsible for your operations, and have an excellent record of obtaining favorable advisory opinions and rulings. If necessary on your behalf, we will undertake administrative appeals and public policy lobbying to secure the necessary support for your expansion.

How we Get Things Done
One of our health team members is widely regarded as one of South Carolina’s top lawyers at securing regulatory approval for certificate of need applications. She has secured CONs for hospitals, imaging centers, nursing homes and a free-standing ambulatory surgery center.

Handling Reimbursement Concerns

You can rely on McNair for comprehensive counsel on the legal, compliance and policy issues governing the Medicare and Medicaid programs. No matter what your health care service or product, you get effective representation at all levels of the Department of Health and Human Services and its agencies, especially the Centers for Medicare and Medicaid Services (CMS). An important part of that representation involves handling payment disputes before the CMS Provider Reimbursement Review Board (PRRB), the independent panel to which you can appeal if you are dissatisfied with a reimbursement decision.

We also have special experience dealing with reimbursement issues involving TRICARE, the federally funded health program for military personnel and their families. Our knowledge of the policies and personnel of these and other agencies gives you the effective insight necessary to resolve reimbursement controversies and help you secure full payment.

How we Get Things Done
McNair tried to verdict the first administrative case ever in the country involving TRICARE reimbursement issues. The dispute was heard in Colorado, and we secured a successful reimbursement result for our health system client.

Reducing Fraud and Abuse Risk

Any health care provider could face allegations of fraud and abuse under federal and state laws regulating kickbacks and physician self-referral, as well as Medicare and Medicaid billing and reimbursement rules. We give you informed guidance on how to structure internal investigations and litigation defenses to deal with government actions.

If you face a False Claims Act investigation by the HHS Office of the Inspector General (OIG), you can confidently turn to us knowing that we have represented providers like you in investigations, administrative proceedings and trials. Beyond the fraud and abuse issue, we work with provider organizations to proactively identify reimbursement problems by improving existing and proposed coding, billing, collection, consulting and reassignment arrangements.

How we Get Things Done
Our client, the first state-chartered medical school in the Deep South and currently a leader at training health professionals in its medical center and six colleges, was one of a number of organizations nationwide that were involved in PATH (Physicians at Teaching Hospitals) audit cases brought by the OIG. As documented by the CMS, McNair achieved the most favorable outcome for our client out of any of the hospitals involved.

Preserving Your Tax Exemption

Not-for-profit hospitals or health care provider organizations which enter joint ventures, acquisitions and provider contracting arrangements face increasing scrutiny from federal and state taxing authorities on whether these activities are consistent with tax-exempt status. We know that maintaining your 501(c)(3) exemption is vital, and use our broad experience and our strong knowledge of the ins and outs of the applicable tax laws and regulations on your behalf.

You also get the help you need on dealing with the tax implications of physician recruitment, tax-exempt financing, sales tax exemption and other operational concerns. For tax-exempt entities entering business transactions, we use well tested strategies or, where required by the circumstance, develop creative strategies to maintain 501(c)(3) classification, create new charitable or religious entities, review and revise organizational charters and bylaws so that they conform to tax code requirements, and establish new corporate structures or leasing arrangements to handle unrelated business income tax issues.

If there are IRS or state tax law questions about actions taken, you get effective representation and negotiation that fully and persuasively supports your position.

How we Get Things Done
McNair secured tax-exempt 501(c)(3) status when one of the state's largest health care systems was formed by a religious institution and a county government. And when our client, a manufacturer of prosthetic devices, faced the loss of its state sales tax exemption, McNair effectively worked through the court system and with state taxing authorities to reaffirm the exemption for both pharmaceuticals and prosthetics.

Defending Against Malpractice Allegations

McNair regularly defends health care providers and provider organizations against claims alleging malpractice, wrongful death and patient abuse. We represent hospitals and large hospital systems, long-term care providers, physicians, nurses, physician assistants, physician organizations and other health care providers in trial and appellate proceedings arising out of allegations of medical negligence. We understand that the elements of a negligence lawsuit—duty of care, breach of duty, injury—aim at the heart of a health care professional’s skill, commitment and reputation. Our defense on your behalf is aggressive and informed, and we have had consistent success at countering emotional plaintiff arguments with the factual communication of the law and science.

How we Get Things Done
Other law firms with health care practices often lack trial experience in medical malpractice cases. McNair has tried dozens of such cases to verdict, defending not only providers, but also medical device companies that face product liability litigation over such critical care tools as needles and syringes. Our malpractice and liability lawyers know the standard of care requirements that courts expect, and are skilled at identifying expert witnesses who effectively support our clients’ defenses.