In legislation enacted on October 7, 2020, New York State is requiring physicians’ practice settings to post notice, visible to patients, that direct patients to the Office of Professional Medical Conduct’s (“OPMC’s”) website to obtain information about their rights and how to file a complaint regarding professional misconduct. The requirement is effective immediately.

This new provision in Section 230 of the Public Health Law also directs the OPMC to post on its website information about patients’ rights and reporting options for professional misconduct, which must specifically address instances of sexual harassment and assault. OPMC’s website informing patients how to file a complaint of professional misconduct is: https://www.health.ny.gov/professionals/doctors/conduct/. OPMC’s website has not yet been updated, but that can be expected soon.

The scope of the law is broadly directed at “physicians’ practice settings.” Given that the term “physician practice setting” is not defined, the statute could be read that this requirement applies to all treatment settings where a physician provides services, including private medical practices, clinics, hospitals, ambulatory surgery centers and other facilities.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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On October 8, 2020, the Office of the New York State Attorney General’s Charities Bureau released guidance regarding property appraisals for not-for-profit corporations and certain religious corporations seeking approval of property transactions by the Attorney General or the Court. To review the full guidance issued, see https://www.charitiesnys.com/pdfs/AppraisalGuidance.pdf.

The New York Not-for-Profit Corporation Law (“NPCL”) requires that certain transactions involving the sale or transfer of assets owned by not-for-profit corporations and certain religious corporations be reviewed and approved by the Attorney General’s Charities Bureau before closing. These entities must submit a petition to the Charities Bureau for the approval of the sale or transfer of the property, and the petition must include an appraisal of the property. The purpose of the petition and review is to ensure that the proposed transaction complies with the statutory requirements that the price and terms are fair and reasonable, and that the transaction serves the best interest of the corporation and its members.

The Charities Bureau’s guidance discusses certain issues and requirements which are considered by the Charities Bureau when reviewing appraisals submitted with a petition, including:

  1. When to Obtain an Appraisal: An independent appraisal should be obtained by an organization if it is considering transferring property to inform the Board of Directors of the fair market value of the property. The appraisal should be obtained prior to marketing the property and negotiating with a buyer.
  2. Choosing an Appraiser: In New York State, there are three types of appraisers for different types of property being transferred. An entity seeking to sell or transfer property should ensure that the appraiser it engages is qualified to appraise the type of property it owns.
  3. Standards for Appraisals: The appraisal must be done by a licensed or certified independent appraiser. An “independent appraiser” is one who has no relation to the buyer or seller, including their respective board members, officers, key employees or relatives, or the buyer’s or seller’s attorney.
  4. Age of Comparable Sales: Appraisals must be dated less than 12 months prior to the date of execution of the Purchase and Sale Agreement. The comparable sales used in the appraisal should have closed less than 12 months prior to the date of the appraisal.
  5. Adjustment Grid: An adjustment grid or similar type of analysis of the sales comparable to the property being appraised should be included in the appraisal. An adjustment grid is a listing of adjustments made to the comparable sales.
  6. Sales for Less Than Appraised Value: A complete explanation must be submitted with the appraisal should an organization desire to transfer the asset for less than the appraised value, including a description of the marketing process and offers received.
  7. Certification Statements: Appraisals require certain certifications as to the appraiser’s independence and lack of bias.

For more information, see additional Charities Bureau guidance: A Guide to Sales and Other Disposition of Assets by Not-for-Profit Corporations; A Guide to Sales and Other Disposition of Assets by Religious Corporations – posted at https://www.charitiesnys.com/guides_advice_new.html.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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On October 1, 2020, the U.S. Department of Health & Human Services (HHS) announced a Phase 3 General Distribution of Provider Relief Funds. Eligible providers can begin applying on October 5, and the deadline to apply is November 6.

Who is eligible:

  • Providers who previously received, rejected or accepted a General Distribution Provider Relief Fund payment.
  • Providers that have already received payments of approximately 2% of annual revenue from patient care.
  • Behavioral Health providers, including those that previously received funding and new providers.
  • Healthcare providers that began practicing January 1, 2020 through March 31, 2020. This includes Medicare, Medicaid, CHIP, dentists, assisted living facilities and behavioral health providers.

Providers that have already received approximately 2% of annual revenue from the Provider Relief Fund will be considered for an “equitable add-on” payment. HHS will review the following information in making a determination as to whether a provider is eligible for an add-on payment:

  • The provider’s change in operating revenues from patient care;
  • The provider’s change in operating expenses from patient care, including expenses incurred related to coronavirus; and
  • Payments already received through prior Provider Relief Fund distributions.

All payment recipients will be required to attest to receiving the Phase 3 General Distribution payment and accept the associated Terms and Conditions.

HHS urges providers to apply as early as possible.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.

 

In a memo, dated September 28, 2020, the Director of the Quality, Safety & Oversight Group in CMS’ Center for Clinical Standards and Quality clarified that facilities that activated their emergency plans due to the COVID-19 Public Health Emergency (PHE) are exempt from their next required full-scale community-based or individual, facility-based functional exercise. Affected facilities, however, must be able to demonstrate, through written documentation, that they activated their emergency plan due to the PHE.

Under the emergency preparedness testing regulations, revised effective November 29, 2019, CMS requires inpatient facilities to conduct exercises to test their emergency plan at least twice per year, including an annual full-scale community based exercise (or, if not accessible, a facility-based functional exercise) AND an additional “exercise of choice.” Outpatient facilities must also conduct exercises at least annually, but need only conduct a full-scale community based exercise (or if not accessible, an individual facility-based exercise) every two years. In years opposite the year of the full-scale or facility-based functional exercise, outpatient facilities must conduct an “exercise of choice.” The memo clarifies that both inpatient and outpatient facilities may need to conduct an exercise of choice following the current PHE if they were required to conduct such an exercise this year and did not already do so. An “exercise of choice” must be one of the following:

  • Another full-scale exercise;
  • Individual-facility-based functional exercise;
  • Mock disaster drill; or
  • A tabletop exercise or workshop.

CMS suggests that facilities may choose to conduct a table-top exercise, which could assess the facility’s response to COVID-19. This may include, but is not limited to:

  • discussions surrounding availability of personal protective equipment (PPE);
  • isolation and quarantine areas for screening patients; or
  • any other activities implemented during the activation of the emergency plan.

Attached to the memo is a work sheet for state surveyors, as well as facilities, to assist in determining whether they qualify for the testing exemption following activation of their emergency plans during the PHE. Facilities should review both the memo and the work sheet (available at: https://www.cms.gov/files/document/qso-20-41-all.pdf ) to ascertain if they meet the exemption requirements related to community-based or individual, facility-based functional exercises and for the types of documentation that surveyors will be looking for to support that an emergency plan was activated.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.

 

Garfunkel Wild, P.C., a premier law firm with a specialty in health law, is pleased to announce Andrew Blustein has been named the Firm’s new Chairman, effective October 1, 2020. Andrew succeeds Robert Wild, founding member of Garfunkel Wild. While Robert will assume the title of Chairman Emeritus, he is not retiring and will continue his practice and charitable work.

Andrew was appointed Vice Chairman four years ago as part of the Firm’s leadership succession plan allowing him to work with outgoing Chairman Robert Wild while transitioning into the new role. “I am grateful to have worked with Robert to dramatically grow into a Firm with four offices, in Great Neck, NY; Hackensack, NJ; Stamford, CT; and Albany, NY,” incoming Chairman Andrew Blustein said.

“It is an honor to serve as Chairman of Garfunkel Wild,” Andrew said. “This is an excellent time for our law firm and the Garfunkel Wild family. Our invaluable, resilient colleagues and staff have banded together throughout the pandemic to provide the Firm’s clients with tailored forward-thinking legal solutions. We are now more committed than ever to seize opportunities, empower our clients to face challenges and continue to build a Firm for the future.”

Andrew arrived at Garfunkel Wild 28 years ago and has held multiple leadership positions. He has been a member of the Firm’s Executive Committee for nearly a decade, and co-founded and co-chairs the Firm’s Health Care Information and Technology Practice Group and E-Health and Telemedicine Practice Group.

Andrew steps into his new role after another successful year. In the last 12 months alone, the Firm doubled the size of its Connecticut office, introducing a new integrated Biotechnology, Life Science and Medical Device Practice group and added 12 attorneys. The Firm continues to focus on strategic planning, including attorney development and future growth into new markets and practice areas.

“I look forward to continuing, through organic growth and strategic lateral acquisitions, the expansion of our practice areas including health care compliance, litigation, nursing home practice, finance, real estate, health care information and technology, managed care contracting and white-collar defense as well as cultivating the next generation of Firm leadership,” Andrew said.

“Andrew is a proven leader and an experienced attorney. He has been an integral part of the growth and success of Garfunkel Wild, shrewdly and strategically adding excellent attorneys and complementary practice areas at the right times,” said outgoing Chairman Robert Wild. “He has been a key member of the Firm’s Executive Committee, and I am confident that under Andrew’s leadership, our success will continue and grow all while maintaining the culture of collaboration and teamwork that has benefited our clients for over 40 years.”

Garfunkel Wild, P.C. is a full service law firm providing assistance to a broad range of clients, including hospitals, health care systems and other health care facilities, organizations, practitioners and technology companies. Garfunkel Wild, P.C. is ranked in Chambers USA, The Best Lawyers in America© and Super Lawyers. For more, visit www.garfunkelwild.com.