Winston Chan, Partner, Gibson, Dunn & Crutcher LLP
William J. Harrington, Partner, Goodwin Procter LLP
Jeffrey Marcus, Founder, Marcus Neiman & Rashbaum LLP
A theme throughout the Compliance Institute was that shopping for FMV valuations conflicts with FMV being based on an “independent third party opinion”. There is no hard bright line for what FMV is, but the OIG and DOJ do provide us some guidance.
While there has always been an emphasis on not paying for volume, but now there are questions about productivity. The government is beginning to call into question whether financial relationships which are set up depending on how many hours the physicians work.
Recent Stark and Anti-Kickback settlements have brought to light the fact that when a hospital is losing money year after year in a particular arrangement; it should be a red flag.
The Yates Memo has put a lot of focus on individuals and their role in violations. Not only does this mean that physicians are being held accountable for agreements that are in violation of the regulations, but also that hospital executives may be held responsible. There are been criticism that executives are “too big to jail” and have not been held accountable. In the coming year, we will see more evidence as to how the Yates Memo will be enforced.