The New York Court of Appeals issued its decision in Andrew Carothers, M.D., P.C. v. Progressive Insurance Company.  In that case, the Court held that no-fault carriers in New York can recoup or withhold payments made to a professional medical corporation (“P.C.”) if the carriers can show that P.C. was improperly controlled by persons who are not licensed physicians. The Court rejected the P.C.’s contention that the carriers could only recoup reimbursement payments upon a showing that the corporation engaged in fraudulent conduct directed at the no-fault carriers. Under the Court’s holding, improper control by unlicensed persons – without fraudulent conduct – is enough to permit recoupment or withholding.

In reaching its decision, the Court of Appeals discussed the types of business arrangements that would indicate improper control of a P.C. by unlicensed persons. Improper control exists, for example, where the physician-owner was not actively involved in the operations or financial aspects of the corporation, the corporation’s core business assets were owned and controlled by the unlicensed persons, these unlicensed persons received compensation from the P.C. far in excess of market value and in excess of that received by the physician-owner, and the corporation entered into leases and other business transactions with the unlicensed persons under terms that significantly exceeded what would be fair market value or commercially reasonable.

Accordingly, the Carothers decision provides an important warning to New York-based health care providers who enter into management arrangements with unlicensed persons or entities. Care must be taken to ensure that the unlicensed persons or entities cannot be said to have improper control over the provider entity. If they do, then the provider’s past and future no-fault reimbursement is at risk, regardless of whether the services were actually provided medically necessary. It is also possible that payers outside of the no-fault arena – such as managed care companies – will add language to their contracts and plans enabling them to recoup and deny reimbursement for medically necessary services on the basis that the provider entity is improperly controlled by unlicensed persons or entities.

Further, the physician participating in such an arrangement could be viewed as aiding in the unlicensed practice of medicine and committing improper fee splitting.

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If you have relationships that you would like reviewed to ensure they comply with the Carothers decision, please call the GW attorney that you normally deal with for advice.


Andrew Blustein was selected as an instructor at The Horizon Foundation for webinar, “Do No Harm: Exploring Strategies for Safer Prescribing of Opioids”.

May 31, 2019

Garfunkel Wild Vice Chairman Andrew E. Blustein was a selected to be a course instructor at The Horizon Foundation for New Jersey medical education webinar, “Do No Harm: Exploring Strategies for Safer Prescribing of Opioids,” on May 31.  Garfunkel is very proud of contributing to the battle against Opioid addiction.

The Partnership for a Drug-Free New Jersey and Horizon Blue Cross Blue Shield of New Jersey, through its philanthropic arm, The Horizon Foundation for New Jersey, have collaborated to create Knock Out Opioid Abuse, an initiative to address the opioid epidemic through community outreach, prescriber education, parent education and a statewide media campaign to increase awareness of the crisis.

The accredited curriculum will be accessible and satisfies the New Jersey one-hour continuing education requirement concerning prescription opioid drugs, including education on responsible prescribing practices, alternatives to opioids for managing and treating pain, and the risks and signs of opioid abuse, addiction and diversion.

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Garfunkel Wild, P.C. (GW), with offices in New York, New Jersey and Connecticut, is pleased to announce the arrival of Elaine Zacharakis as a partner in the firm’s Health Care Information and Technology Group.

“We are very fortunate to welcome Elaine to the firm,” said Robert Andrew Wild, GW’s Chair.

Andrew E. Blustein, Vice Chairman and co-chair of GW’s Health Care Information and Technology Group added, “As a leading health care information and technology practice, Elaine will complement our group well and allow us to continue to provide the health care industry with strategic counsel in advancing their technology needs.”

Ms. Zacharakis brings a broad-based practice specializing in technology and privacy law, corporate and regulatory health care. She has extensive experience negotiating a variety of health care and technology agreements. She is also the current chair of the American Bar Association’s Health Law Section’s eHealth, Privacy & Security Interest Group and a member of the legal task force at the Healthcare Information and Management Systems Society.

Ms. Zacharakis comes to GW after maintaining her own health, technology and privacy law firm for 14 years.

“What makes Elaine unique is that beyond her legal expertise, she continually provides insight into the broader business impacts of these contractual relationships to ensure that we are prepared to be compliant operationally. Her work is thorough and timely and she will be an asset to any health care client,” said Patricia Huschle, Regional Director at CVS Health.

Over the past 15 years, Ms. Zacharakis has represented the full spectrum of health care entities, including health insurance companies, managed care organizations, hospitals, physicians, home health organizations, ambulatory surgery centers, pharmaceutical and medical device companies, pharmacy benefit managers and disease management organizations.

GW’s Health Care Information and Technology Group assists health care institutions and professionals in reviewing, negotiating and drafting IT hardware and software agreements, as well as hosting arrangements and other technology platforms. The Group also provides advice to regional health information organizations/ health information exchanges, and other organizations regarding the laws and regulations affecting health care technology, including incentive funding requirements applicable to electronic health records.

“The addition of Elaine reaffirms our commitment to client service,” noted Terence A. Russo, co-chair of GW’s Health Care Information and Technology Group. “Her knowledge and experience will enhance our expanding practice and provide our clients with continued support and guidance in the evolving technology environment.”

Since 2004, Ms. Zacharakis has been an adjunct professor at the Beazley Institute for Health Law at Loyola Law School and the Center for Information Technology and Privacy Law at the John Marshall Law School. She received her J.D. from Notre Dame Law School and her B.S. in Industrial Engineering from Columbia University.

New York licensed health care facilities that utilize certified electronic health record technology, including ambulatory surgery centers, hospices, nursing homes, home care agencies, FQHCs and urgent care centers are reminded that they are mandated by the New York State Department of Health to become participants of a Qualified Entity (also referred to as a “QE,” “HIE” or “RHIO”), by March 9, 2018, in order to connect to the State Health Information Network for New York (more commonly known as the “SHIN-NY”).  Participation with a QE allows the health care facility to participate in bidirectional exchange of patient information between other QE participants and access to the information available in the SHIN-NY.

Click Here to read entire Legal Alert.

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If you need any additional information regarding this requirement or assistance in requesting a waiver, contact your Garfunkel Wild attorney for assistance.


About Garfunkel Wild, P.C.


Garfunkel Wild, P.C. was founded in 1980 with a single purpose in mind: to become a pre-eminent health care law firm attending to the unique business and legal needs of its clients. Since then, the firm has grown to over 70 attorneys devoted to addressing the complex legal, regulatory, business and financial needs of its diverse clients.

If you would like to receive Legal Alert mailings from Garfunkel Wild, P.C. electronically in the future, or if you would like to be removed from the mailing list, please contact us at (516) 393-2200 or eMail us at  You may also visit the Firm’s website.




Registration is free, simply click the links below.

Sexual Harassment in the Medical Profession:  The Ever-Pervasive Threat
December 14, 2017
12-12:30 p.m. EST
This webinar should prove helpful to all medical facilities, from solo providers to large multi-practice groups and hospitals. No type of entity is immune from such behavior or the need to respond to it forcefully and effectively. Listeners will be guided on how to identify the more subtle forms of wrongful behavior, the impact on patient safety and the financial viability of your facility should you fail to respond appropriately, and what steps you can take to prevent such behavior and to respond to it in the most effective manner possible.
Register Here