Garfunkel Wild’s Legal Alert “DOH Revised ASC Policies” was referenced in the Becker’s ASC Review article “New York imposes stricter policies for freestanding ASC developments — 5 things to know.”

Becker’s ASC’s July 24, 2019 article lists the five things to know regarding the New York State Department of Health (“DOH”) revised ambulatory surgery center (“ASC”) Certificate of Need Policy requiring a closer review of the financial impact that a new freestanding ASC can have on the continued availability of essential community health care services in rural areas.

Click Here to read the Becker’s ASC Review article.

Click Here to read Garfunkel Wild’s Legal Alert.

About Garfunkel Wild

Garfunkel Wild was founded almost 40 years ago with a single purpose in mind – attend to the specific business and legal needs of our clients in the health care industry. With nearly 80 attorneys representing more than 60 hospitals plus health care systems and other health care facilities, organizations and practitioners, Garfunkel Wild has kept this focus. The firm has offices in New York, Connecticut, and New Jersey. For more information, visit www.garfunkelwild.com.

 

On July 11, 2019, the Appellate Division, Third Department, in a series of three criminal cases, significantly limited the authority of the NYS Justice Center for the Protection of People With Special Needs (“JC”) Special Prosecutor. In the lead case, People v. Hodgdon, the Third Department held that the JC Special Prosecutor did not have independent prosecutorial authority apart from a district attorney and that a JC Special Prosecutor may only act with the knowing written consent of a district attorney who retains the ultimate responsibility for the prosecution.  The court further held that the authority of the Special Prosecutor is subordinate to that of a district attorney and as such, the Special Prosecutor is limited by any choices made by a district attorney.

The decision has state-wide implications and will change current practices. The JC Special Prosecutor may no longer independently threaten criminal prosecution as the ultimate decision of whether to prosecute must be made by a district attorney and the district attorney must take ultimate responsibility for the prosecution.  Whether this reduces the number of criminal cases emanating from JC investigations remains to be seen, but the additional involvement of a district attorney provides welcome independent oversight of all future JC prosecutorial decisions.

Click Here to download the Legal Alert.

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If you have any questions about this alert, please contact a member of our Discharge Planning, Patient Rights and Elder Law Group or the Garfunkel Wild attorney with whom you regularly work.

 

The New York State Department of Health (“DOH”) has revised its ambulatory surgery center (“ASC”) Certificate of Need Policy to require a closer review of the financial impact that a new freestanding ASC can have on the continued availability of essential community health care services in rural areas.

Previously, DOH would only recommend disapproval of a new ASC if the impact would likely result in the closure of a local hospital, and the burden was placed on the surrounding hospitals, rather than the applicant, to prove this financial impact. Under the new policy, if the proposed ASC will have a negative financial impact on a Critical Access or Sole Community Hospital, DOH will recommend disapproval.  Between 2008 and 2018, DOH approved 87 new ASCs, and disapproved 1. This rate of approval is likely to change, particularly in rural areas.

In addition, since 2006, DOH has imposed a limited duration operating certificate (a “Limited Life”) of five years on all newly established free standing ASCs where there is no hospital owner (subject to renewal). Going forward, DOH will also impose a Limited Life on an ASC where there is a change of ownership of 50% or more members.

Operators of proposed ASCs should consult with legal counsel to determine the issues that DOH will consider regarding approval. Similarly, existing ASCs without a Limited Life should consult legal counsel when engaging in a change of ownership.

Click Here to download the Legal Alert.

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If you have any questions about this alert, please contact a member of our Health Care Practice Group or the Garfunkel Wild attorney with whom you regularly work.

 

On July 5, 2019, the Supreme Court of Westchester County issued a trial-court level decision in the case, Maple Medical LLP v. Scott, Index No. 51103/2019, concerning entitlement to MLMIC funds distributed in connection with MLMIC’s purchase last fall by National Indemnity Company, a Berkshire Hathaway subsidiary. This is the first trial-court level decision since the Appellate Division, First Department’s April 4, 2019 decision in In re Schaffer, Schonholz & Drossman, LLP v. Title, 96 N.Y.S.3d 526 (1st Dep’t 2019).

In this lawsuit, plaintiff multispecialty medical practice brought various claims against defendant physician employee seeking to establish its entitlement to funds distributed pursuant to the MLMIC purchase in connection with a policy under which the physician was insured but for which the practice paid the premiums. The physician asserted a counterclaim for a declaratory judgment for turnover of the MLMIC funds and moved for summary judgment. The practice cross-moved for summary judgment on its complaint against physician for the release of the same funds to the practice.

Justice Lawrence H. Ecker denied the physician’s motion for summary judgment and granted the practice’s motion for the MLMIC monies. In reaching its decision, the Court found that the issue presented and facts in this case were identical to those in Schaffer, in which the First Department found that a policyholder physician would be unjustly enriched should she, and not the radiology practice that had paid the premiums for the policy in question, be awarded the disputed MLMIC funds. Bound by the doctrine of stare decisis which required the Court to apply precedent established in another Appellate Department, the Court found in favor of the practice, holding that “the conclusions drawn in the First Department’s [Schaffer] decision are persuasive, and that a similar holding in this action based upon the principles of unjust enrichment is warranted.”

Click Here to download the Legal Alert.

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For more information on this decision and other matters relating to the MLMIC demutualization, please contact a member of our Litigation and Arbitration Group or the Garfunkel Wild attorney with whom you usually work.

 

The Turnaround Management Association (“TMA”) named Garfunkel Wild Partner/Director Burton Weston winner of the 2019 Turnaround and Transaction of the Year Award, in the category Non-Profit Transaction of the Year, for his work as counsel for Wonderwork, Inc.

The TMA Turnaround and Transaction Awards, recognize the most successful turnarounds and impactful transactions in the past year. The Turnaround Management Association (TMA) is the leading nonprofit serving corporate renewal and restructuring professionals.

Click here to read more.

About Garfunkel Wild

Garfunkel Wild was founded almost 40 years ago with a single purpose in mind – attend to the specific business and legal needs of our clients in the health care industry. With nearly 80 attorneys representing more than 60 hospitals plus health care systems and other health care facilities, organizations and practitioners, Garfunkel Wild has kept this focus. The firm has offices in New York, Connecticut, and New Jersey. For more information, visit www.garfunkelwild.com.