We have been heartened by many of our client healthcare facilities and providers developing and offering up unique and creative solutions to address the surge of healthcare needs from the evolving COVID-19 outbreak. We have been working with our clients and the NYS Department of Health (DOH) to facilitate the necessary emergency approvals to implement these proposals in an expeditious manner. As you may know, the NYS Governor’s Executive Order 202.1 gave the DOH the authority to issue these emergency approvals (without a CON).

Different divisions or bureaus at DOH are handling these requests depending on the nature of the facility and the proposal.

If you wish to pursue such a proposal to create additional capacity for COVID-19, while our offices are closed, we are completely set up and are remotely available to help expedite your requests. These requests can include emergency approval for additional capacity or alternative sites for testing, triage, screening or treatment related to COVID-19 surge response. This may include construction or modification requests related to the use of alternative facilities, development of additional capacity or the repurposing of existing space.

Once again, we are proud to consider ourselves part of a healthcare community which has proven itself in this and other crises to be resilient and resourceful. We are here to play our part to help manage these challenging times.

            *           *           *           *           *

Should you have any questions, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com. We have attorneys on call 24/7. If you call our main number, 516-393-2200, it will direct you to the on-call attorney. 

 

Garfunkel Wild Complimentary Webinar – Mayor de Blasio’s Emergency Executive Order

Tuesday, March 17, 2020

Speakers:  Andrew E. Blustein, James E. Dering, Stacey L. Gulick

Garfunkel Wild Vice Chairman Andrew E. Blustein and Partners James E. Dering and Stacey L. Gulick presented a webinar on “Mayor de Blasio’s Emergency Executive Order,” discussing Mayor de Blasio’s Emergency Executive Order requiring New York City Hospitals and ASCs to cease performing elective procedures.

Click Here to view webinar.

 

Garfunkel Wild’s Second-Ever Chairman Is Already Thinking About the Next Generation of Leadership

Andrew Blustein said his firm, which focuses on the health care industry, has become an “educational and client-focused powerhouse” this year.

When Andrew Blustein joined Garfunkel Wild 28 years ago, the firm had a dozen lawyers. Now it has grown to more than 80, but Blustein, who will become the firm chairman effective Oct. 1, is only the second person to hold that role in the firm’s history.

Robert Wild, who founded the firm more than 40 years ago in Great Neck, New York, will move into the role of chairman emeritus, and he does so following a growth spurt at Garfunkel Wild. In the last year, it has added 12 lawyers, doubled the size of its Connecticut office, and added a biotechnology, life science and medical device practice group.

Blustein spoke with the New York Law Journal about what he envisions for the near and far future of the midsize firm, including serving health care clients in the midst of a pandemic and setting things in motion for the next generation of partners and leaders. (His answers have been edited lightly for style.)

Firm Name: Garfunkel Wild
Firm Leader: Andrew Blustein, chairman
Head Count: 83
Locations: Great Neck and Albany, New York; Hackensack, New Jersey; Stamford, Connecticut
Practice Areas: Full-service with a focus on the health care industry

Governance structure and compensation model: Garfunkel Wild is governed by a combination of the chairman and an executive management committee (which has some appointed and some elected shareholders). This governance structure also meets with—and receives guidance from—the partnership. As we have evolved, the interaction between the chairman, the executive committee and the partnership has been very effective in allowing us to meet challenges and continue our growth. This approach makes for a simple governance structure with built-in flexibility. Our compensation is decided by a compensation committee and our model is based on reviewing data and considering many factors both on an individual and collective firm basis.

Do you offer alternative fee arrangements? Yes, we are willing to talk to our clients and propose a customized billing arrangement that may meet their particular need. Value-based billing offers pricing certainty to clients and financial predictability. It also expands opportunities for operational efficiency. Hourly billing has been a dominant model for the legal profession for many years, however, our lower fee structure positions our firm well and makes us very competitive in the market. We strive to keep overall billing to clients efficient and competitive.

What do you view as the two biggest opportunities for your firm, and what are the two biggest threats?

One of our greatest opportunities as a midsize firm is our ability to offer our clients big-firm quality service at a lower cost structure. This allows us to be highly competitive in attracting work and top-tier legal talent. Whether you are a Big Law transplant, lateral or a recent law firm graduate you will be surrounded by colleagues who are motivated, accessible and passionate about the law.

Another opportunity is that we have very deep experience in the health care sector but offer a full range of legal services to complement that experience. Whether it is real estate, litigation, bankruptcy, employment law, corporate or other more general areas of the law, our attorneys combine these disciplines with our focus areas of health care specialization.

The biggest threat to Garfunkel Wild (and many law firms) is the overall economy. Obviously, we are dependent on strong economic activity. We have positioned ourselves well during the pandemic, but if that was going to stretch out to an economic downturn that presents another tier of difficulty. The second—and related concern—is a second wave of coronavirus outbreaks.

The legal market is so competitive now—what trends do you see, and has anything, including alternative service providers, altered your approach? Is your chief competition other midmarket firms, or is your firm competing against big firms for the same work?

We are very sophisticated in terms of what we can handle and we compete against larger firms every day. A differentiator for our clients is our fine-tuned holistic lawyering approach in which we strive to understand all aspects of our clients’ business, culture, needs and concerns. This allows our attorneys the ability to provide efficient and strategic solutions to our clients.

There is much debate around how law firms can foster the next generation of legal talent. What advantages and disadvantages do midsize firms have in attracting and retaining young lawyers, particularly millennials?

As a midsize firm, we have the size, structure and ability to offer leadership and meaningful legal projects early on to the next generation of legal talent and laterals who want to avoid being another face in the crowd. We care about the development of legal talent and focus attention on providing leadership opportunities coupled with the guidance and feedback that young lawyers and millennials need to succeed. By staffing projects leanly with a partner in charge, associates will have direct client interaction and the ability to develop relationships with clients.

Does your firm employ any nonlawyer professionals in high-level positions (e.g. COO, business development officer, chief strategy officer, etc.)? If so, why is it advantageous to have a nonlawyer in that role? If not, have you considered hiring any?

We depend upon our nonlawyer professionals including our chief operating officer, director of marketing and business development, accounting and technology leaders. Many have come from among the legal, accounting and the technology industries with unique perspectives that have contributed to our success. As an accountant, our chief operating officer’s diverse background and experience enables him to efficiently manage cross-functional business operations. Bringing nonlawyers into those roles is the appropriate way to run a firm because you want the best people in their respective fields and you want lawyers devoted to servicing clients in a legal capacity.

What would you say is the most innovative thing your firm has done recently, whether it be technology advancements, internal operations, how you work with clients, etc.?

During the pandemic, Garfunkel Wild became an educational and client-focused powerhouse. On the educational perspective, our attorneys created and participated in many webinars on various topics such as telehealth, employment issues and meeting operational challenges. These webinars, together with our legal alerts, attracted thousands and we became a go-to resource for all the regulatory changes that were being promulgated. Similarly,clients were besieged by new and substantial problems and our attorneys worked around the clock to be crisis managers and problem solvers.

We also wanted to contribute to the community using our focus on health care. One example was a recent pro bono project where we introduced community activists and donors to one of our system hospital clients in order to create a COVID-19 testing facility filled with ventilators and other crucial equipment.

Does your firm have a succession plan in place? If so, what challenges do you face in trying to execute that plan? If you don’t currently have a plan, is it an issue your firm is thinking about?

Succession planning needs to be done on a leadership and client level. As attorneys work with clients on a daily basis, they begin to develop strong relationships with existing clients. Our firm encourages and fosters these relationships so that when a partner retires or leaves the firm, the next generation can assure client continuity.

My journey to chairman is exactly how our successful leadership succession plan has been and continues to be enacted and executed. I arrived at Garfunkel Wild as a third-year associate 28 years ago, over time firm leadership gave me increasing opportunities to serve on important projects and be part of varying committees. I was appointed vice chairman four years ago, allowing me to work with outgoing chairman Robert Wild and other firm leaders while transitioning into the new role. At Garfunkel Wild our leaders evolve into their roles and as I step into my new role as chairman on Oct. 1, it is my priority to continue cultivating the next generation of firm leadership.

Click here to download the article.

 

 

The number of confirmed cases of COVID-19 in the United States is increasing rapidly and health care providers need to be prepared.  Federal, state and local government agencies recommend that health care providers take various steps during their preparation efforts, including the following:

  • Review the organization’s Emergency Response Plan and be prepared to implement it
  • Contact the applicable trade association if encountering supply shortages
  • Implement Personal Protective Equipment (PPE) conservation strategies
  • Be prepared to implement communication plans with employees and patients
  • Consider tele-health and remote treatment options to keep individuals at home
  • Be prepared to isolate or address high risk patients
  • Understand when testing for the Novel Coronavirus is permissible (Note: there are limited testing options at this time and specific guidelines as to when tests can be requested)
  • Educate people on strategies to avoid Emergency Departments, which may become over-crowded
  • Identify essential staff and consider which staff can work remotely
  • Report confirmed cases or individuals who meet the criteria for persons under investigation (“PUI”)
  • Be prepared to address employee inquiries and concerns
  • In facilities, consider access and movement of visitors
  • Be familiar with Federal, State and local on-line resources. Here are a few:

https://www1.nyc.gov/site/doh/health/health-topics/coronavirus.page

https://www.nj.gov/health/cd/topics/ncov.shtml

https://portal.ct.gov/DPH/Public-Health-Preparedness/Main-Page/2019-Novel-Coronavirus

https://www.cdc.gov/coronavirus/2019-ncov/index.html

https://asprtracie.hhs.gov/MasterSearch?qt=coronavirus&limit=20&page=1&CurTab=0

https://www.health.ny.gov/diseases/communicable/coronavirus/

            *           *           *           *           *

As this situation unfolds, recommendations and requirements are being updated and changed at a rapid pace.  If you need any assistance in understanding or addressing these concerns, please contact the Garfunkel Wild attorney with whom you regularly work.

Click Here to download the Legal Alert.

 

 

On Thursday, February 6, 2020, the Public Health and Health Planning Council (“PHHPC”) voted to adopt the Department of Health’s (“DOH”) final amendments to the licensure requirements for Licensed Home Care Services Agencies (“LHCSA”) operating in New York State (the “Adopted Regulations”). These regulations will replace prior regulations and end the LHCSA application moratorium (the “Moratorium”) that went into effect on April 1, 2018 and is set to expire on March 31, 2020.

Under the Adopted Regulations, in addition to the existing requirement of undergoing a character and competence review, a LHCSA applicant will now be required to include in its application: (i) a demonstration of public need for additional LHCSA providers or services in a given planning area, i.e., county; and (ii) provide proof of financial resources and feasibility to operate the entity.  Failure on either one of these grounds will result in a denial of the application.   Furthermore, the Adopted Regulations provide that DOH’s determination to approve or deny an application may be made solely on the threshold matter of establishing a public need.  If DOH determines that such a need does exist, the application will then be subjected to financial feasibility and character and competence reviews.

Applicants Are Now Required to Demonstrate Public Need

The demonstrated public need requirement is a holdover from the Moratorium, which required proof that a need existed that was not being addressed by currently registered LHCSAs operating within a county.  However, while the Moratorium established a rebuttable presumption that adequate access to care existed if there are two or more LHCSAs already approved in the applicant’s proposed county, the Adopted Regulations expand that rebuttable presumption to five or more LHCSAs actively operating in a county as of April 1, 2020.

Under the Adopted Regulations, DOH will consider the following factors when determining whether there is a need for additional LHCSA services in a given area:

  • demographics and/or health status of the residents in the planning area;
  • documented evidence of patients who experience a long waiting time for placement;
  • number and capacity of currently operating LHCSAs;
  • quality of services provided by existing agencies;
  • availability and accessibility of the workforce;
  • personnel and resources dedicated to adding and training additional members of the workforce;
  • cultural competency of existing agencies; and
  • subpopulations requiring specialty services.

The Adopted Regulations explicitly state that LHCSAs seeking initial certification will only be approved as meeting a demonstrated public need if the LHCSA agrees to serve population groups in a county that has difficulty gaining access to appropriate LHCSA care due to minority status, age, medical history, case complexity, payment source, or geographic location.

LHCSAs affiliated with an Assisted Living Program (ALP), Program of All-Inclusive Care for the Elderly (PACE), Nurse Family Partnership (NFP), or Continuing Care Retirement Community (CCRC) are not required to submit to a public need review unless that agency intends to serve patients outside its licensed program.  Additionally, an application based on a change of ownership in an actively licensed LHCSA with at least 25 patients will not be subject to the public need requirement.

LHCSA Applicants Must Demonstrate Financial Feasibility

DOH’s review of a LHCSA applicant’s financial feasibility will be based upon (i) an examination of the sources of available working capital, with a minimum requirement of at least two months estimated operating expenses; (ii) the application passing a reasonableness test with respect to the financial capability of the LHCSA for start-up funding; and (iii) projections indicating that the LHCSA’s revenues, including but not limited to operating revenue, will be equal to or greater than projected expenditures over time.

New Circumstances Added Impacting The Need to Amend a LHCSA Application.

The Adopted Regulations expand the definition of what would be considered a circumstance requiring an amendment to an application prior to approval. Previously, a LHCSA applicant would need to amend its application if there was a change in the types of services the applicant would provide or if there was a change in the individuals being considered by PHHPC as part of the LHCSA applicant’s character and competence review.  Now, under the Adopted Regulations, an application is required to be amended when there has been (i) a significant change in the individuals being considered by PHHPC; (ii) any significant change in the LHCSA’s proposed patient capacity; (iii) any change in the LHCSA’s proposed service area; and/or (iv) any significant change to the LHCSA’s proposed annual operating budget.  Failure on the part of a LHCSA to disclose any of these circumstances prior to DOH issuing a license will be considered sufficient grounds for the revocation, limitation or annulment of DOH’s approval.

            *           *           *           *           *

If you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work.

Click Here to download the Legal Alert.