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Health Care

Commitment to Health Care

The breadth and depth of the general health law experience of the members of our firm distinguishes us from our competitors.  Many of our attorneys have practiced exclusively in the health care area for many years and in a variety of settings. The experience of the Hogan Marren Babbo & Rose attorneys, both as former in-house counsel and partners at large law firms, provides HMBR with an historical in-depth context of the changes taking place within the health care industry over the years.  We pride ourselves on our ability to offer clients solutions to problems from different perspectives and to advise them with respect to industry developments, as well as the legal questions that are transactional or regulatory in nature.  Hogan Marren Babbo & Rose is able to compete with much larger firms because we provide quick access to experienced health care specialists at a reasonable price.  We are flexible in structuring fee arrangements, including appropriate capitated fee amounts, where necessary, to help clients obtain predictability in legal budgets.  Our philosophy is to use our collective experience to provide our clients with more than strictly legal services.  Our aim is to form strategic relationships where our services are integrated with our client’s goals in a complementary fashion to further the client’s targeted objectives.  Their success is our success.

General Health Care

Regulatory Compliance:

We represent our clients before the Departments of Public Aid, Public Health, Insurance, Health Facilities Planning Board, State Attorneys General, the U.S. Department of Justice, Federal Trade Commission, the Internal Revenue Service and Commerce Commissions.

Certificate of Need and Licensure Issues:

Hogan Marren Babbo & Rose has experience in advising health care providers regarding CON law for a variety of projects and the process to obtain a CON permit.  HMBR attorneys also have experience working with the Health Facilities Planning Board staff in resolving issues and questions related to the CON process.  We have also assisted with discontinuation of certain service areas and closures of hospitals and terminations of affiliations.

Fiduciary Obligations:

Hogan Marren Babbo & Rose has extensive experience advising clients regarding the fiduciary duties and responsibilities of directors of not-for-profit organizations and systems and the implications of charitable trust law in the exercise of their obligations.

Provider Based Status:

We have helped hospitals analyze their current operational structure and obtain provider based status for appropriate clinic sites.

JCAHO Matters:

We have assisted many of our general counsel clients in addressing JCAHO accreditation matters including assistance regarding lack of supervision of stroke and Alzheimer patients, life safety code violations, and building structure violations.  We have also been involved in drafting medical staff bylaws and credentialing policies.

Clinical Research:

Hogan Marren Babbo & Rose has experience in providing general counsel to Institutional Review Boards on a variety of topics such as committee composition and conflict of interest, sufficiency of Subject Information Sheets and research protocols including informed consent issues, and adverse event reporting.  We also have experience in reviewing and negotiating research contracts and grants with government sponsors, collaborative groups, commercial sponsors, and philanthropic organizations.

EMTALA Investigations:

We have successfully assisted clients in responding to notifications from the Department of Health and Human Services that an EMTALA violation existed resulting in possible termination from the Medicare program.  Our representation has included providing assistance in preparing the credible evidence of correction for any deficiencies noted.

Clinical Integration & Pay for Performance

The combination of in-depth knowledge of hospitals, physician practices, and managed care with antitrust expertise and transactional acumen makes the attorneys of Hogan Marren Babbo & Rose, Ltd. uniquely capable in the formation and implementation of clinically-integrated physician and hospital networks.  At HMBR, we believe strongly in the value of clinical integration – both in the way it fosters collaboration among independent doctors to increase the quality and efficiency of patient care, and in its ability to provide a basis for collective physician and hospital negotiations with PPOs and other fee-for-service health plans.   Further, clinical integration can uniquely position physicians and hospitals for emerging reimbursement models like episodic bundling, pay-for-performance, and shared savings.

The health care practice of Hogan Marren Babbo & Rose, Ltd. provides a comprehensive catalogue of legal services relative to creation of Accountable Care Organizations (ACOs), IPAs, PHOs, and other provider networks, as well as the evaluation, development, implementation, and operation of clinical integration programs.

Clinical Integration, Accountable Care, and Physician Alignment:

HMBR has counseled clients extensively in clinical integration matters, and has assisted clients in establishing Accountable Care Organizations through which the independent and employed physicians can develop, implement, and coordinate a clinical integration program and engage in joint contracting activities with managed care organizations.   In addition to traditional contracting and transactional legal services, HMBR offers its clients a comprehensive menu of clinical integration development tools such as a readiness assessment, network contracting risk assessment, vendor and consultant selection and retention, clinical integration program formation and evaluation, proper messenger model formation, and educational support for executive, board and member levels.

  • ACO/IPA/PHO Formationthe creation of a well-structured business organization through which the independent physicians can develop, implement, and coordinate a clinical integration program and engage in joint contracting activities with managed care organizations.
  • Clinical Integration Readiness Assessment the evaluation of existing infrastructure and programs to determine an organization’s preparedness to engage in clinical integration activities.
  • Network Contracting Risk Assessment– the evaluation of past and current contracting activities to determine the antitrust risks, if any, posed by this conduct.
  • Vendor and Consultant Selection and Retention– identification and evaluation of technology vendors and other consultants necessary to implement and operate a clinical integration program.
  • Clinical Integration Program Formation and Evaluationconsultation and advice in the formation of clinical integration and pay-for-performance programs that satisfy prevailing legal and regulatory standards.
  • Proper Messenger Model Formationconsultation and advice in the implementation of “messenger model” procedures that satisfy FTC guidelines.
  • Executive, Board, and Member Education – presentations regarding the legal and business case for clinical integration for the organization’s management team, board of directors, and general physician membership.
  • Contracting and Transactional Support – legal review and advice regarding contract negotiations and language for clinically-integrated, fee-for-service arrangements.
  • Representation in Litigation – aggressive legal defense in federal and state court actions, as well as private arbitration.
  • Advisory Opinion Practice – petitioning the FTC and U.S. Department of Justice to obtain regulatory advisory letters in connection with a physician or hospital network’s clinical integration program.
  • Government Investigation Practice – vigorous representation and advocacy in response to FTC and U.S. Department of Justice inquiries into the contracting conduct of physician and hospital networks.

Pay-for-performance and Shared Savings:

HMBR has advised clients in the development of benchmarks and report cards for physician performance.  Further, we have worked with hospitals and health plans to develop shared savings and pay-for-performance models that work to align the economic incentives of physicians in order to improve clinical quality and reduce the cost of care.  Hospitals, medical staffs, PHOs, IPAs, private payors and governmental payors are increasingly focused on the rising health care costs and means of encouraging physicians to deliver quality health care in a cost efficient fashion.  Working in collaboration with qualified consultants, HMBR is expert at establishing workable programs that improve physician performance in a manner consistent with legal and regulatory requirements.

Transactional Health Care

Managed Care Delivery Systems:

Our attorneys have developed numerous HMOs, PPOs, Point of Service option plans and specialized risk plans.

Formation of Multi-Institutional Systems, Networks and Joint Ventures:

These activities include the development of a $1.4 billion hospital network in an urban area; the development of a regional health care delivery system, including multiple rural county hospitals; affiliations between university hospitals and community hospitals; numerous hospital networks focused on managed care activities; and the development of “super PHOs.”

Purchase/Sale of Medical Practices:

Members of our firm have assisted hospitals and physicians in buying or selling medical practices, including the sale by a hospital of a 150 person practice group.

Outpatient Joint Ventures:

We have assisted hospitals and physicians in the development and operation of joint ventures for ambulatory surgery centers, diagnostic surgery centers and cardiac catheterization labs, and examined the appropriateness of provider-based or “under arrangement” status for such entities.

Medical Office Buildings:

We have assisted hospitals in the construction, acquisition and/or leases of medical office building space to affiliated physicians.

Medical Staff Issues

Physicians Relations/Medical Staff Development:

Our representation includes the development of medical staff bylaws, credentialing plans and medical staff development plans and representation of managed care entities and hospital systems related to selection and rejection of providers. We have also represented hospitals in medical staff bylaw disputes and have assisted individual physicians in peer review hearings.  We understand the critical need for positive and honest relationships between the medical staff and hospital.

Physician Representation:

We have represented numerous physician groups in structuring their relationships with hospitals and each other.  Members of our firm have developed joint ventures between physician groups for joint management and billing services, merged various physician groups, structured physician employment arrangements and represented physicians in front of state and federal regulatory agencies.

Board Education Issues:

Members of our firm have advised Hospital Board members regarding their fiduciary obligations, including conflicts of interest, Sarbanes-Oxley issues as applicable, liability concerns, charitable trust law, compliance with Section 501(c)(3) and Intermediate Sanction requirements and satisfying criteria for maintaining state real estate and sales tax exemptions.  We have conducted investigations regarding potential conflicts of interest at the request of the Boards of Trustees.

Federal Payor Issues

Development of Specialized Medicaid Strategies:

Our representation has spanned several states including the formation of hospital networks for purposes of client contracts with state Medicaid programs; the development of a demonstration project for chronic pediatric patients; and the development of a Medicaid-oriented HMO.

Medicare Representation:

Our attorneys represent providers in a full range of third party payment issues and analyze transactions for Medicare Anti-Fraud and Abuse and Stark law to advise clients regarding compliance issues.  We have also been involved in drafting and implementing corporate compliance programs for addressing Medicare and Medicaid law and regulations.  In a case of first impression, we were retained to represent a health care system that owns an HMO in a HCFA and OIG investigation regarding health screening.  We regularly handle third-party payment disputes and have negotiated various settlement arrangements with the OIG and Assistant U.S. Attorneys.

Health Care Litigation

Hogan Marren Babbo & Rose has successfully represented its health care clients on antitrust matters, federal False Claims Act litigation, Medicare and Medicaid Fraud claims, qui tam (whistleblower) actions, reimbursement disputes, managed care disputes, CON proceedings, PRRB and IDPA proceedings, HHS/OIG investigations, federal grand jury investigations, hospital-physician disputes, peer review and medical staff-related litigation, licensing and professional regulation reimbursement proceedings and guardianship proceedings.  In representing the firm’s health care clients, the attorneys at HMBR have appeared in state and federal courts at both the trial and appellate levels, as well in state and federal administrative agencies and alternative dispute resolution forums.

Qui Tam / Whistleblower Cases:

Hogan Marren Babbo & Rose has represented clients in various federal and state whistleblower lawsuits, including a recent case involving claims brought by former employees of an ambulance transport company under the federal False Claims Act and the Medicare Anti-Kickback Statute.  The plaintiffs, or relators, in this case alleged that several hospitals, ambulance companies, and certain individuals engaged in knowing violations of the Anti-Kickback Statute when they entered into contractual arrangements for discounted Part A ambulance transport rates.  After several years of extensive fact and expert discovery and pretrial negotiations, the Court recently granted a motion for summary judgment in favor of the hospital defendants.

Breach of Payor Contract:

Hogan Marren Babbo & Rose has assisted its clients in filing claims against health plans that fail to comply with various provisions under their contractual arrangements with providers.  Our clients have sought monetary, emergency and permanent injunctive relief from health plans that have breached or attempted to breach agreements by denying or withholding reimbursement to providers, using contracted rates for enrollees of other plans that are excluded from the contracted rate arrangement, and other wrongful conduct specifically prohibited under the managed care arrangements.

Commercial Litigation:

Hogan Marren Babbo & Rose has successfully represented clients in landlord/tenant disputes, breach of contract, discrimination suits, fraudulent conveyance, employment and other commercial disputes affecting businesses, whether health care or otherwise.

Antitrust

Antitrust

Hogan Marren Babbo & Rose has advised numerous clients regarding the antitrust implications of acquisitions, consolidations, mergers, affiliations and managed care contracting.  Most recently, we defended a multi-hospital system and its affiliated physician network against a charge of price fixing brought by a large national health plan wherein the health plan sought over $250 million in alleged antitrust damages and equitable relief.  Following a full trial on the merits, the arbitration panel dismissed all claims against the hospital system and the physician network.

Health Care Construction Support

Construction

Hogan Marren Babbo & Rose has represented numerous institutions in the negotiation of construction contracts, including a major university Hospital, community hospitals, construction of continuing care residential units, real estate developers, and several of Chicago’s largest construction companies and subcontractors.  The firm has represented clients in cases involving mechanics liens, breach of contract and construction defects on behalf of owners, contractors and subcontractors, many of which have involved extremely complex issues with multiple parties, extensive construction defects, and contract performance issues.  The firm is presently representing a governmental entity in a multi-million dollar construction dispute over renovations.

Physical Plant and Environment Issues:

Hogan Marren Babbo & Rose has represented numerous large institutions before the Department of Buildings and Zoning with respect to Municipal Code violations. We review current zoning and building code requirements and work with our clients to ensure compliance with those requirements. Several attorneys in our firm are currently involved in representing a municipality regarding hazardous materials and toxic waste issues.