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Overview
Vinson & Elkins has one of the largest health care legal practices in the United States. The Beard Group’s Nightingale’s Healthcare News ranked V&E;’s health care law practice third largest in the U.S. Many of our attorneys are recognized nationally as preeminent in their fields of law. In addition to the attorneys who specialize in health law matters, all of Vinson & Elkins capabilities can, if desirable, be marshaled for the benefit of clients in health care matters.
Examples of services furnished to health industry clients include (listed alphabetically):
Academic Medical Center Issues
Reimbursement counseling concerning issues unique to academic medical centers, including direct and indirect graduate medical education issues, teaching physician coverage and payment issues, and nursing education matters; assisting in obtaining patent and trademark protection for the fruits of research programs; providing advice on accounting for grant funds and compliance with grant limitations; developing faculty practice plans; providing advice on the legal implications of using experimental equipment, drugs, or protocols; and consulting on house staff matters.
Acquisitions, Mergers and Consolidations
Representing buyers or sellers in traditional arm’s length acquisitions; consulting on the consolidation of two or more hospitals into one entity; assisting in transfers of facilities from religious sponsorship to community operation; and organizing governmental hospital entities and transferring of providers from governmental units.
Antitrust Counseling and Litigation
Advising clients on compliance with the antitrust laws affecting exclusive contracts, supplier contracts (e.g., Robinson-Patman Act issues), acquisitions and mergers, provider networks, fee setting, and other relationships that develop in traditional health care arrangements and the newer models of managed competition and cooperation; and representing clients (as plaintiffs or defendants) in civil litigation or criminal proceedings based on the antitrust laws and other laws affecting business competition.
Behavioral Health Industry
Drafting contracts with community mental health centers to provide behavioral health services under arrangements; advising clients on reimbursement for mental health services; preparing responses relating to deficiencies in licensure and/or Medicare certification; advising clients on specialized consent and treatment issues; drafting exclusive provider agreements between employers and mental health providers; representing clients in state Attorney General investigations of marketing practices for mental health services; representation of mental health and mental retardation authorities; representation of clients awarded Medicaid managed care demonstration project contracts; and drafting contracts between health maintenance organizations and mental health providers. In addition to these engagements, Vinson & Elkins provides the complete spectrum of legal services to clients in the behavioral health industry.
Bioethical Issues
Drafting consent forms; advising on the requirements for informed consent in particular situations; reviewing hospital policies for dealing with sensitive issues (e.g., HIV testing of patients and personnel, DNR orders and withdrawal of life support); reviewing organ procurement protocols; and counseling in tense legal and ethical situations (e.g., the continuation of life support, whether “extraordinary” or artificial nutrition and hydration).
Business Organizational and Contractual Agreements
Advising clients on all matters relating to the laws governing the organization and internal operations of health care entities; counseling on the optimal organizational structure to avoid unnecessary regulation and minimize tax liability; assisting with issues relating to directors’ liability and fiduciary duties, directors’ indemnification and insurance, shareholders’ rights, special committees, and internal investigations; counseling on the obligations of nonprofit status and limitations on the use or distribution of the funds of a nonprofit corporation; assuring compliance with statutory or corporate document requirements; and drafting and revising corporate documents.
Contracts
Drafting and negotiating contracts with executives, physicians, laboratories, managed care organizations, employees, and business coalitions.
Corporate Compliance Programs
Assisting clients in design and implementation of corporate compliance programs (“CCP”) ranging in scope from a single issue Medicare CCP to comprehensive CCP encompassing all health care regulatory issues as well as other legal compliance issues including labor and employment, antitrust, taxation, environmental issues, and intellectual property.
Corporate Practice of Medicine
Performing multiple analyses of the corporate practice of medicine doctrine and counseling clients on the impact it has on various business entities as well as individual physicians. The firm’s Health Industry Group has developed a broad expertise and a large volume of materials relating to the corporate practice of medicine. In addition, we have performed surveys and analyses of the corporate practice of medicine doctrine in several other states. Our previous work experience has allowed us to garner an effective understanding of an elusive and enigmatic doctrine and has yielded a large volume of reference materials relating to the corporate practice of medicine.
Environmental Law
Counseling clients on matters involving regulatory compliance, particularly in the context of business transactions; assisting clients in developing self-auditing programs and procedures; representing clients before the federal, state, and local bodies that legislate and enforce environmental regulations; and defending clients in litigation, including agency enforcement actions and criminal environmental charges.
Fraud, Illegal Remuneration, Stark Law, False Claims Act and Civil Sanctions
Advising on compliance with federal and state legislation relating to referral fees and billing obligations; conducting internal investigations; structuring transactions to avoid illegal remuneration issues (e.g., joint ventures between physicians and hospitals); and representing clients under investigation for possible violations of criminal or civil penalty provisions, including civil monetary penalties, exclusion, and federal False Claims Act actions.
Health Planning
Interpreting the scope of certificate of need (“CON”) laws; assisting in preparation of CON applications; and representing clients in CON administrative hearings and litigation.
HIPAA - (Health Information Privacy)
Providing legal services to more than 50 V&E; HIPAA Consortium members on every aspect of implementation of the Health Insurance Portability and Accountability Act’s Administrative Simplification requirements related to confidentiality of health information. A multidisciplinary task force of V&E; lawyers is addressing the Privacy Standards, the Standard Transactions and Code Sets regulations, the proposed security rules, and other aspects of HIPAA compliance. We have established an Extranet accessible by password that contains more than 200 documents related to HIPAA compliance.
Home Health Agencies
Advising home health agencies on various Medicare and Medicaid reimbursement issues, provider certification and licensure issues, and on home health agency acquisitions. The firm has counseled home health agencies and related entities in a number of matters, including the following:
- assistance in drafting of plans of correction in response to deficiencies cited by the state agency responsible for licensure and Medicare/Medicaid certification, and in interacting with individuals at the state agency and at CMS regarding such plans;
- advising home health agencies about criteria for establishment of parent/branch office relationship for certification and licensure purposes;
- drafting agreements for the employment or retention of a medical director by a home health agency or a hospice, as well as agreements between home health agencies or hospices and contractors who are to provide services under arrangements;
- drafting agreements for the employment or retention of a medical director by a home health agency or a hospice, as well as agreements between home health agencies or hospices and contractors who are to provide services under arrangements; and
- representing clients in acquiring over sixty home health agencies in over fifteen states, including an acquisition of a three million visit agency, and in processing change of ownership and Medicare certification applications throughout the United States.
Information Systems
Negotiating information systems contracts; negotiating with information systems vendors regarding performance of information system contracts; litigating information systems matters; and dealing with bankruptcy of software vendors.
Insurance and Risk Management
Advising on appropriate levels of insurance coverage; creating self-insurance programs; assisting in the design and implementation of a risk management program; and intervening in situations that pose risks of severe loss.
Integrated Health Care Delivery Systems and Networks
Advising clients on the numerous federal and state laws and regulations affecting integrated health care delivery systems; drafting documents to create systems and networks and to reflect the relationships within such groups; and representing systems and networks before federal and state regulatory bodies, third-party payors, and other entities with which they contract.
Intellectual Property
Representing clients before the Patent and Trademark Office, the U.S. International Trade Commission, other agencies, and in the courts on matters relating to the acquisition, protection, and commercial use of trade secrets, patents, trademarks, copyrights, and other proprietary information.
Joint Ventures
Structuring ventures in a manner to qualify for coverage and payment from third party payors, and to minimize tax, tort, illegal remuneration, and physician self-referral risks; advising on the application of federal and state securities and “blue sky” laws; drafting organizational documents; and drafting offering circulars.
Labor and Employment
Providing consultation on executive compensation, fringe benefit, and wage and hour matters; wrongful termination; EEO obligations; union organizing activities; ERISA obligations; and OSHA requirements.
Legislative and Administrative Health Care Lobbying
Lobbying on behalf of particular clients or industry groups at both legislative and agency levels; providing early information on new proposals that may present problems or opportunities; and drafting legislation.
Long Term Care
Advising long term care corporations on a variety of complex business transactions; representing nursing homes in matters involving state licensure and Medicare certification issues involving both administrative appeals and judicial proceedings.
Managed Care
Representing providers in organizing relationships for the provision of managed care; counseling on the requirements of state HMO statutes, insurance laws, federal standards, and associated antitrust issues; reviewing and drafting managed care contracts for employers, providers, and managed care organizations; formulating frameworks for the establishment of managed care provider networks; and organizing business entities for HMOs, PPOs, and third party administrators.
Medical Staff
Drafting, revising, and interpreting medical staff bylaws and rules; representing the parties or providing counsel in medical staff disputes; advising on issues relating to the National Practitioner Data Bank, including timely reporting, reportable events, confidentiality, and immunity protection through reporting; and advising on obligations of practitioners other than medical doctors, including osteopaths, chiropractors, podiatrists, midwives, and allied health personnel.
Physician and Practitioner Licensure and Quality Standards
Consulting on the ethical obligations of physicians under medical practice acts; analyzing the applicability and scope of corporate practice of medicine prohibitions; representing individual licensed practitioners before licensing boards; and representing practitioners in disputes with Peer Review Organizations.
Physician Practice Group Issues
Advising clients on and implementing the organization of certified non-profit health corporations, affiliated professional associations, professional limited liability companies and other groups; the application of the complex securities and tax laws to the merging of existing physician practices.
Physician Practice Management Companies
Representing organizers in the creation, development, and financing of PPMs; representing PPMs in practice acquisition and management; representing physicians; and negotiating payor contracts.
Real Estate and Construction Matters
Advising and representing medical entities in the acquisition, disposition, and financing of real estate, as well as in construction projects and contractor relationships.
Reimbursement
Representing providers, physicians, and suppliers at the Provider Reimbursement Review Board, before hearing officers and administrative law judges, and in the federal and state courts; counseling on the reimbursement effects of contemplated transactions; interpreting contracts with nongovernmental third party payors; advising on coverage for new technology or procedures; negotiating and litigating with state Medicaid agencies; and advising on various state rate-setting or financial reporting programs.
Survey, Licensure, Certification, and Grant Requirements
Representing clients before accrediting or licensing authorities, such as state health departments, the Joint Commission on Accreditation of Healthcare Organizations, organ procurement organizations, and the Health Care Financing Administration, on facility standards, licensure, certification, policies, facility changes in ownership or closures, specific complaints, Medicare provider termination actions or alleged “patient dumping” violations; and consulting on Hill-Burton and other grant program obligations.
Tax
Representing tax payors in structuring transactions to minimize federal income tax liability and in negotiation and litigation with the Internal Revenue Service.
Tax-Exempt and Taxable Finance
Participating in tax-exempt financings as bond counsel or as counsel for the health care facility, the governmental authority, trustee, credit or liquidity provider, or the underwriter; participating in taxable financings, including receivable financing, asset securitization, taxable bonds, notes and securities, mortgage loans, unsecured indebtedness, sale-leaseback transactions, mezzanine financings, and other methods of acquiring funds; interpreting bond covenants; counseling concerning compliance with federal and state law governing assignment of Medicare and Medicaid receivables; and negotiating with trustees and other creditors in instances of technical default to obtain approval for proposed transactions.
Tax-Exempt Status
Preparing applications for Section 501(c)(3) and public charity status; advising clients on maintaining their tax-exempt status and the risks presented by certain transactions; counseling on unrelated business income tax issues; preparing ruling requests to assure compliance; and advising clients on policies and practices that will minimize the risk of losing exemption from local ad valorem taxes.
White Collar Law
Assisting clients with internal investigations of possible civil and criminal violations, defense of grand jury subpoenas and proceedings, defense of search warrants, negotiations with prosecutors, dealing with suspension and debarment issues, criminal pleas, trials and sentencing; establishing proactive compliance and auditing programs to prevent and deter violations of law, which potentially can mitigate the consequences of a violation under the Federal Sentencing Guidelines; defending against civil or administrative litigation which may be filed by the government or private parties as a result of criminal investigation; and assisting client with Congressional and agency inquiries into regulatory compliance and other matters.
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