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Disability Discrimination Cases are Being Pursued by the Office of Civil Rights

Disability Discrimination Cases are Being Pursued by OCR.

(July 19, 2013):  Health care providers choosing to participate in Medicare, Medicaid and other Federal health benefits programs are obligated to comply with a wide range of statutory and regulatory requirements.  The primary issues most cited in connection with these obligations include those involving questions of medical necessity and / or coverage, coding and billing requirements and documentation mandates.  Health care providers are also required to comply with applicable employment laws, OSHA safety requirements, and with the medical records privacy rules of HIPAA and HITECH.  Collectively, these laws and regulations represent a significant challenge for many small and mid-sized health care providers and organizations.  Nevertheless, it is essential that all health care providers also keep in mind that Federal law also prevents participating providers from engaging in disability discrimination.

 I.  Regulatory Requirements Governing Participating Providers:

Pursuant to Section 504 of the Rehabilitation Act of 1973, as amended (Act), and its implementing regulations, 45 C.F.R. Parts 81 and 84.1, health care providers participating in programs receiving Federal funding cannot refuse to treat a patient on the basis of the patient’s disability. At first blush, you may find it hard to imagine how (or why) a health care provider would ever even consider refusing to care or treat a disabled patient because of the patient’s disability.  The case outlined below provide a stark example of how disability discrimination can result in serious administrative sanctions being pursued against a health care provider.

II.         Overview of a Recent Case:

The following summarizes the allegeg acts which gave rise to an enforcement action by the Department of Health and Human Services (HHS), Office of Civil Rights (OCR):

  • A California physician who practices neurological surgery (surgeon) examined a patient covered by “MediCal,” California’s Medicaid program.  Medi-Cal is jointly financed by Federal and State funds.
  • The patient suffered from hip and back pain and was referred to this surgeon for evaluation and treatment by his primary care physician.
  • After examining the patient, the surgeon recommended that the patient undergo surgery. The patient then agreed to seek pre-authorization for the procedure by Medi-Cal.
  • The surgeon subsequently learned that the patient was reported to be HIV positive.
  • The patient was recalled by the surgeon and was asked if, in fact, he was HIV positive.  When the patient responded affirmatively, the neurological surgeon then reportedly advised the patient that he would be unable to perform the surgery and recommended that the patient seek to have the procedure performed at the county hospital.
  • The neurological surgeon then discharged the patient from his practice “and, in correspondence advising the referring physician that he had done so, specifically mentioned that the young man was HIV-positive.”

(For a more detailed discussion of the facts in this case, you may wish to review the decision of the HHS Departmental Appeals Board).

A discrimination complaint was subsequently filed against the surgeon by the patient with OCR.  Consistent with applicable regulations, OCR is documented as having tried “to the fullest extent practicable,” to obtain the surgeon’s cooperation.  See 45 C.F.R. § 80.6(a).

Once it concluded that an information resolution of this discrimination complaint would not be forthcoming, OCR recommended that the HHS take action to suspend or terminate the recipient’s federal financial assistance. See 45 C.F.R. § 80.8(c).

On or about August 2, 2012, that is precisely what occurred.  An Administrative Law Judge (ALJ) for the HHS’ Departmental Appeals Board determined that the surgeon’s:

“lack of cooperation establishes that he will not voluntarily comply with the Act and regulations and that OCR will not be able to assure his compliance by informal means. Termination of his federal financial participation is therefore an appropriate remedy for his refusal to comply voluntarily. 45 C.F.R. § 80.8(c).” 

In reaching this conclusion, the ALJ then ordered:

“I therefore order that the responsible HHS officials suspend, terminate, refuse to grant or continue [Surgeon’s] Federal financial assistance, until he satisfies those officials that he will comply with the Act and regulations. As a review of the record shows, it appears that OCR made multiple settlement overtures to resolve the complaint with the surgeon but that its efforts were ultimately unsuccessful.”

III.  Disability Discrimination Lessons Learned:

As a review of the Opinion issued by the Departmental Appeals Board will show, OCR diligently attempted to resolve this issue with the surgeon informally, prior to taking this case forward.  Now that the surgeon has been effectively suspended from receiving Federal funds, he is effectively barred from treating Medi-Cal patients.  While additionals sanctions involving Medicare and other Federal health benefits programs could later take place, no discussion of these programs is covered in the ALJ’s opinion.  Nevertheless, what are some of the potential actions that could conceivably take place in the future?

(1)    From a public relations standpoint, this action could be disastrous for a health care provider’s practice.  

(2)   Depending on how the action is worded and how it is perceived by State licensure officials, this action could result in an investigation and possible sanctions by a State Medical Board.

(3)   Most, if not all, private payors require that health care providers give them written notice of any adverse actions taken by another payor within 30 – 60 days.  This action could therefore result in the proposed de-credentialing of the surgeon from one or more private plans.   

(4)   Many hospitals require that a health care provider be a participating provider in the Medicare and / or Medicaid programs in order for them to receive admitting privileges in their institution.  An adverse action such as this against a provider’s Medicaid status could result in action being taken by hospitals where the provider is privileged. 

Notably, the decision in this case is not the same as an exclusion action.  In fact, the way it is worded almost implies that if the surgeon takes remedial action, his Medi-Cal eligibility will be reinstated.

As a final point, this case clearly illustrates OCR’s emergence as an enforcement agency to be reckoned with.  While prior administrative enforcement sanctions have focused on Civil Monetary Penalties (CMPs), this action effectively suspends a health care provider’s ability to participate in Medicaid, short of seeking a permissive exclusion action against the provider.

From a regulatory standpoint, this case can serve as a real-life example of the importance of developing and implementing a comprehensive, effective Compliance Program.

Healthcare LawyerRobert W. Liles, J.D., M.B.A., M.S., serves as Managing Partner at Liles Parker PLLC, a boutique health law firm with offices in Washington, DC, Texas and Louisiana.  Liles Parker attorneys represent health care providers around the country in compliance, regulatory and peer review related actions.  Should you need assistance, feel free to give us a call.  Call Robert for complimentary initial consultation at:  1 (800) 475-1906.

 

 

 

“Under the Fifth Amendment, You Have the Right to Remain Silent.” Well. . . Maybe Not.

What are Your Fifth Amendment rights in the event of a ZPIC audit?(July 3, 2013): Everyone reading this article is likely familiar with the phrase “You have the right to remain silent.”  In fact, a citizen’s right to remain silent is considered the cornerstone of an individual’s Fifth Amendment right against self-incrimination.  As you may recall, the Fifth Amendment to the Constitution provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”[1] (emphasis added).

Prior to 1965, an individual’s Fifth Amendment rights were considered to be rather narrow. However, in 1965, the U.S. Supreme Court issued a decision in the case of Griffin v. California, 380 U. S. 609 (1965). In Griffin, the Supreme Court found that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Prior to the issuance of Griffin, if a defendant decided not to take the stand and testify, a prosecutor could readily note that fact and try and argue that the mere fact that the defendant chose not to remain silent is proof of his guilt.  The very next year, a decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966) was issued by the Supreme Court.  Under Miranda, if a police officer placed an individual in custody, the individual’s right to remain silent would need to first be covered before an interrogation could take place.

Based on these two rulings, do you believe that you have a fairly clear understanding of your Fifth Amendment rights?  Good luck with that. . .

I.  Recent Case Law Impacting the Fifth Amendment:

More than twenty years ago, on December 18, 1992, two men were shot and killed inside their home in Houston, Texas.  The perpetrator fled the scene without being identified, but a neighbor claimed to have observed someone speed off in a dark car after leaving the house. The investigation led police to the home of Mr. Salinas, who they discovered owned a shotgun with the same gauge as the shells found at the crime scene.   Mr. Salinas cooperated with the police when he was first questioned.  Moreover, he voluntarily agreed to go to the local police station.  At that time, Mr. Salinas readily offered his shotgun for ballistics testing.  During the questioning, however, Salinas was asked by police whether or not the shells found at the crime scene would match his shotgun, and in response Salinas remained silent and reportedly “tensed up and looked at the floor.”  Following the interview, police later arrested the defendant on outstanding traffic warrants. At that time, prosecutors handling the case concluded that there was not enough evidence to charge him with the two murders.  After he was released, the police identified a witness and obtained a statement from a man who said he had heard Mr. Salinas confess to the killings. The police were then unable to find Mr. Salinas in order to re-arrest him. In 2007, he was found to be living in Houston under an assumed name.

He was tried for the two murders in 2007. Despite the defendant’s objections, prosecutors cited Mr. Salinas’ reaction to the officer’s question during the 1993 interview as evidence of his guilt. The jury found him guilty, and he was sentenced to 20 years in the penitentiary.   Mr. Salinas appealed the conviction with the Texas Court of Appeals, arguing that it was improper and against his Fifth Amendment rights for the prosecutor to cite his silence when asked by the police in 1993 about the shotgun shells.  The Texas Court of Appeals disagreed, noting that his “silence” occurred before he was arrested and placed into custody.  Therefore, he was not “compelled” within the meaning of the Fifth Amendment.[2] The Texas Court of Criminal Appeals later took up this case and affirmed the lower court’s ruling based on the same reasoning.[3]

When appealed to the U.S. Supreme Court, it held that if Mr. Salinas would have desired to have protection under the Fifth Amendment during his voluntary questioning, he would have had to actively request that his Miranda rights be read to him for the privilege to be invoked.  The Supreme Court also overruled Mr. Salinas’ argument that his silence should not have been used in trial, stating that if they only prohibited the use of the petitioner’s mid-interview silence, and not his other responses during the interview (because it could arguably negatively prejudice the jury), then the Court would be placing the prosecution at an unfair disadvantage by allowing evidence helpful to Mr. Salinas while barring evidence helpful to the State of Texas’ prosecution efforts. See Salinas v. Texas, 133 S. Ct. 928 (2013).

II.  Impact on Health Care Investigations by Federal Officials and Federal Contractors:

While you may find these cases interesting, you may also be wondering, “Why should I care about this, I am a health care provider, not a criminal?”

        A.      Unannounced Visits and Interviews by Federal Law Enforcement Agents.

There are multiple Federal and State law enforcement agencies that are constantly investigating potential allegations of health care fraud.  In fact, it is quite common for agents of the Department of Health & Human Services, Office of Inspector General (HHS-OIG) to conduct:

  • Unannounced or unscheduled visits of your practice, clinic or home health agency.
  • Unannounced audits of medical records and claims.
  • Requests for interview of current personnel at the workplace or at the employee’s home.

Regardless of the nature of the contact, if you or a member of staff is questioned by a Federal agents, it is important to keep in mind that it is a Federal crime to lie to an HHS-OIG agent, an agent of the Federal Bureau of Investigation (FBI) or any other Federal law enforcement agent. In fact, such an act can constitute a separate Federal crime under 18 U.S.C. 1001.  Does that make you think twice about readily answering questions?  Well, it should.  Nevertheless, you may ask yourself: Will the agent understand what I am trying to say?  Will I be able to articulate myself so that the agent doesn’t misinterpret my statements? Will an off-the-cuff remark by me be taken incorrectly?  Will we completely misunderstand each other? Regardless of the nature of your concerns, you may be tempted to keep your mouth shut, thereby avoiding any miscommunication. Unfortunately, that could also be problematic.

Don’t forget the holding in Salinas.  It is important to keep in mind the fact that health care fraud investigations and any associated questioning would typically be conducted by a Federal agent without an individual being placed into custody (and therefore without any Miranda warnings being provided). Therefore, non-custodial “silence” can, in fact, be used against you if you are subsequently charged and prosecuted for a heath care fraud related crime.

What’s the answer?  You very well may be afraid of saying the wrong thing and also afraid of the way it might look if you choose to remain silent,  One option would be to advise the agent that you intend to cooperate but would feel more comfortable answering questions if your attorney was present.

Unfortunately, there are a couple of final concerns to consider.  As a participating provider in the Medicare program, you have an obligation to “cooperate” in any visit, review or audit conducted by the government or one of its contractors.  Therefore, if you are unexpectedly visited by a law enforcement agent or a Medicare contractor, choosing not to speak until your attorney arrives could result in the revocation of your Medicare number.  Don’t take this concern lightly, we have seen this happen.

         B.     Unannounced Visits and Interviews by a CMS Contractor or a “Federal Auditor.”

Over the last year, auditors and staff working for Zone Program Integrity Contractors (ZPICs) have significantly increased the number of unannounced visits and audits of physician practices, clinics and home health agencies.  While a ZPIC auditor is not a Federal law enforcement agent (and therefore lies to a ZPIC auditor would not be a separate violation of law), such conduct could be construed as an effort to obstruct a Federal auditor, a crime that can result in five years in the penitentiary under 18 U.S.C. § 1516.  Notably, a “Federal auditor” is any person employed for the purpose of conducting an audit or quality assurance inspection on behalf of the Federal government.  Arguably, both ZPIC and Recovery Audit Contractor (RAC) auditors could qualify in this regardTherefore, just because a ZPIC or other CMS contractor is not a law enforcement agent does not mean that you can act or speak in a cavalier fashion.

IV:  Final Thoughts:

At the outset, we readily recognize that these are very complex issues.  Ultimately, the best course of action is to implement and adhere to an effective Compliance Plan, thereby greatly reducing your likelihood of both an audit and of an error.  Nevertheless, despite your best efforts to do the right thing for the right reasons, your practice, clinic, home health agency, hospice or other health care organization may still be visited by an HHS-OIG agent or other Federal auditor who has questions.  In such an event, as a Medicare participating provider, you have an obligation to cooperate.  You should not lie, should not exaggerate and should not be evasive.  If you feel uncomfortable with the questions being presented, ask to speak with your attorney prior to responding.  Continue to cooperate and provide access to any requested medical records (after the auditor’s identity has been established, of course).  As previously discussed, choosing to remain silent during non-custodial questioning can expose you to a variety of administrative sanctions and could ultimately be used against you if a criminal case is later pursued.  We recommend that you contact a qualified health lawyer for assistance if you are ever faced with one of these situations.

Healthcare LawyerRobert W. Liles, J.D., is Managing Partner at the law firm of Liles Parker PLLC, a boutique health law firm representing physicians, group practices, medical clinics, home health agencies, hospices, nursing homes and assisted living facilities around the country.  Our attorneys assist health care providers in a wide variety of health law and regulatory projects and cases.  Should you have questions regarding the issues discussed above or other health law matters, please feel free to call Robert for a free consultation.  He can be reached at:  1 (800) 475-1906.


[1] http://www.law.cornell.edu/constitution/fifth_amendment

[2] 368 S. W. 3d 550, 557–559 (2011).  

[3] 369 S. W. 3d 176 (2012).

Record FCA Recoveries Were Collected by the Government in 2012

FCA Recoveries in 2012 Were a New Record.(February 12, 2013): The civil False Claims Act is the primary civil enforcement tool used by the U.S. Department of Justice.  As discussed below, the False Claims Act is an extraordinarily useful statute for government prosecutors, both in terms of ease of use and in terms of the damages which may be recovered by the government

 

 

I.   Overview of the False Claims Act:

As set out below, the civil False Claims Act imposes civil monetary penalties and will expose a person to civil liability under the circumstances below:

Sec. 3729.  False claims 

(a) Liability for Certain Acts—any person who: 

(1) Knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; 

(2) Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; 

(3) Conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; 

(4) Has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt; 

(5)  Authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true; 

(6) Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or 

(7) Knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, 

. . . is liable to the United States Government…  

II.  What is Not Covered Under the False Claims Act:

It is essential to keep in mind that the civil False Claims Act does not cover mistakes, accidents, or mere negligence.  Unfortunately, the line separating a billing “mistake” from a non-intentional wrongful billing, which could give rise to an action under the False Claims Act, is not always easy to discern.  In an effort to provide additional guidance to DOJ attorneys on the judicial use of the False Claims Act, guidance setting out a number of factors to be considered when pursuing a False Claims Act case.

III.  Damages Under the Civil False Claims Act:

A “person” (which would covers individuals, physician practices, home health agencies, hospice agencies, third-party billing companies, ambulance companies, hospitals, skilled nursing facilities and other health care providers)   found to have violated this statute is liable for civil penalties in an amount between $5,500 and not more than $11,000 per false claim, as well as up to three times the amount of damages sustained by the government.

IV.   What is the Involvement of the U.S. Department of Justice?

While attorneys in DOJ’s Civil Division in Washington, D.C. are likely to be involved in most of the larger, more complex cases under the False Claims Act, it is important to remember that a “Civil Health Care Fraud Coordinator” has been appointed in each of the 94 U.S. Attorney’s Offices around the country. Assistant U.S. Attorneys are highly trained and experienced in handling False Claims Act cases and will readily file a case against a health care provider in the event that improper conduct can be shown.

V.  Whistleblower or “Qui Tam” Provisions of the False Claims Act:

One of the most unique elements of the False Claims Act is that it authorizes private parties having direct knowledge of fraudulent conduct to bring a civil suit against the violator on behalf of the government.  These civil suits are known as qui tam actions, and the private parties who initiate such actions are called “relators.”  Relators may share in any monies recovered as a result of their qui tam action.[1] A qui tam action is initiated when a relator files a complaint – along with supporting documentation – “under seal” in federal court.  When a case is filed under seal, it means that all records associated with the whistleblower are maintained on a non-public docket by the Clerk of the Court.  A copy of the complaint is given to the judge assigned to the case.  The relator’s attorney also serves a copy of the complaint on the Attorney General in Washington, D.C. and on the U.S. Attorney in the federal judicial district in which the case was filed.[2]  Initially, the government will have 60 days to evaluate whether to proceed against the defendant.  In almost all cases, the government will seek an extension to allow it an opportunity to investigate the allegations.  After showing “good cause” for an extension, most federal courts will readily grant the request for an extension.  It is not at all uncommon for a qui tam to remain under seal for over a year (and often much longer) while the government reviews the allegations.  The seal is important for several reasons:

  • The government can quietly investigate the allegations without the defendant knowing that their company is under investigation.
  • The mere existence of a government investigation can be devastating on the public’s view of a company.  Moreover, if a company is publicly-traded, the publicity surrounding a government investigation can severely affect the price of a company’s stock—despite the fact that the allegations at issue have not been investigated or proven at this point in the process. 

After concluding its evaluation, the government may elect to proceed with the complaint and intervene in the case or it may decline to intervene.  If the government decides to intervene in the action, then the relator has the right to remain a party to the action.  If the government decides not to intervene in the case, the qui tam relator may elect to proceed on his or her own against the defendant.  Notably, the government always retains the ability to intervene in the case at a later time.  From a practical standpoint, if the government decides not to intervene in a case, in all likelihood the relator will seek to dismiss the suit.  Unlike the government, the relator’s ability to investigate a False Claims Act case is quite limited, both in terms of resources and in terms of investigative tools.  As a result, the government’s decision to decline to intervene severely impacts a relator’s ability to move forward with the case.  The government often asks the court to partially lift the seal solely for the purpose of advising the defendant of the existence of the case and to seek their cooperation in resolving the allegations.

Should the government choose not, to intervene, it will often ask that the Court remove the seal to the case.  Once the seal is removed, the case (and its allegations) will be part of the public record.  In cases where the government chooses to intervene, the case is often kept under seal until a settlement is worked out with the defendant.  There are a number of limitations placed on the filing of qui tam cases.  Two of the more commonly seen limitations include:

  • When the government has already initiated an action against a party for the same allegations that would form the basis of a qui tam suit; or
  • When the action is based on publicly-disclosed information[3] that was contained in an official hearing, report, investigation, audit, or information disseminated by the news media. 

VI.  Record Recoveries in 2012 Under the False Claims Act:

In recent years, False Claims Act recoveries resulting from whistleblower suits have exceeded most observers’ expectations.  Issues related to the False Claims Act should be at the top of the list of ongoing concerns for most health care Compliance Officers.  The potential damages a provider may face for violations of the False Claims Act cannot be understated.

In Fiscal Year 2012, the U.S. Department of Justice secured settlements and judgments in civil False Claims Act of $4.9 billion.  Notably, this includes a “record recovery for a single year” by more than $1.7 billion.  Over the last four years, $13.3 billion has been recoveries.  Notably, this represents more than a third of the total recoveries achieved since the False Claims Act was amended over 26 years ago.[4]

VII.  Are Physicians Being Targeted Under the False Claims Act:

While large pharmaceutical, durable medical equipment and hospital chain cases continue to dominate the press, physicians, dentists and other solo health care providers are increasingly finding themselves and their practices subject to whistleblower suits under the False Claims Act by former employees, competitors and others who believe that false claims are being submitted to the government for payment.

Notably, a recent whistleblower case pursued by the U.S. Department of Justice against an individual physician (a dermatologist) resulted in a $26.1 million settlement.  In this case, the physician was alleged to have accepted kickbacks from a pathology laboratory.  The physician was also accused of billing Medicare for medically unnecessary services. The whistleblower reportedly collected $4 million as part of the settlement.

VIII.  How Can You Prevent a False Claim Act from Being Filed Against You?

Ultimately, your ability to avoid the filing of a False Claims Act case against you or your practice rests on your ability to comply with state and federal laws, regulations and rules governing the provision, coding and billing of health care services. Without a doubt, the single most important step you can take in this regard is to develop, implement and adhere to the provisions and guidelines set out in an effective Compliance Plan.  While most hospitals and other institutional providers have had Compliance Plans in place for many years, very few physicians have taken this necessary preventative step.

Will a Compliance Plan prevent you from having a False Claims Act case brought against you or your practice?  No, not necessarily.  Instead, you should look at a Compliance Plan as being akin to a flu shot.  Just because you have received a flu shot does not mean that you will never catch the flu.  However, if you do come down with the flu, chances are that it won’t be as serious and it might otherwise have.  All of us make mistakes, and physicians are not immune to this risk.  Nevertheless, having an effective Compliance Plan in place is likely to greatly assist you in your efforts to stay within the four corners of the law.

Healthcare LawyerRobert W. Liles serves as Managing Partner at Liles Parker.  Robert and other attorneys at Liles Parker have extensive experience working on False Claims Act matters and case.  For a free consultation, please call Robert at:  1 (800) 475-1906.   

 


[1] Whistleblowers (also known as “Relators”) can receive between 15% and 25% of any recovery in a qui tam action where the government has intervened in the case.  In a non-intervened case, a relator may recover up to 30%.  Consequently, there is a tremendous financial incentive to file and pursue these types of actions.

[2] The relator must also serve a “disclosure statement” on DOJ (normally, it is provided to the U.S. Attorney’s Office) which sets out the evidence that the relator has in support of the allegations set out in his/her Complaint.  This statement is not filed with the Complaint and is not given to the defendant.

[3] This rule is known as the “public disclosure bar.” The Affordable Care Act modifies this rule in several respects.  First, a qui tam action will not be dismissed under the public disclosure rule if the government opposes dismissal.  Second, fraud disclosed in private legal actions will not activate the public disclosure bar; the government must have been a party to the action in order for the public disclosure rule to apply.  Third, information obtained from state proceedings or hearings likewise will not qualify under the public disclosure bar.  Finally, the public disclosure bar will not operate where the relator was the “original source” (e.g., has independent knowledge) of the fraud or false claim allegation.

[4] http://www.justice.gov/opa/pr/2012/December/12-ag-1439.html

 

Peddling and Soliciting, Municipal Regulations These Issues Can be Complex. Is Your City Clear on These Points?

(January 8, 2013):  As a general rule cities can regulate hawking, canvassing, peddling and soliciting within city limits. International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2711, 120 L. Ed. 2d 541 (1992) The public policy that allows cities to regulate peddlers or the solicitation of contributions is to prevent fraud upon the public and to protect privacy.  See Watchtower Bible and Tract Society of New York,Inc. v. Village of Stratton, 536 U.S. 150, 165 (2002). Most states will have statute (laws) that will provide a city with the authority to regulate peddlers or solicitors.  The regulation has to reasonably relate to the public policy to protect citizens, promote safety, prevent fraud, protect privacy, and other public concerns such as morals, welfare and convenience.  Municipal regulations of this types wil be balanced against the equal protection First Amendment rights of peddlers and solicitors.

The city regulation may include the requirement for peddlers or solicitors to register with the city government, apply for a license or permit and set fees to be paid before being allowed to sell or solicit within the city limits.    A city may deny or revoke a licensed based on the city’s investigation or other factors.  The city may regulate what hours a peddler may approach a private residence or work in city streets or public areas, for example from sunrise to sunset. Regulations may reasonably restrict hours that a peddler may approach private residences or work in city streets or public areas (for example, from sunrise to sunset). See Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613 (5th Cir. 2007).  Additionally municipal regulations may restrict what city streets and public property vendors and solicitors may or may not use for their business, so long as there are adequate alternate places for solicitation.

However, a city may not completely prohibit peddlers from approaching private residences.  A city may compile a “no solicitations” list that residents may sign, and the city can give this list to potential peddlers. The peddlers and solicitors can be required to comply with “no solicitor” signs, and if they are licensed, they could have their license revoked if they fail to comply with “no solicitation” signs.

The laws and factors concerning peddling and soliciting, and what can and cannot be done by cities, will vary from situation to situation and from state to state.  Whether you are a city that wishes to regulate peddlers or solicitors or a private individual or company that wants to engage is peddling or soliciting, it is recommended that you contact an attorney with experience in this area for proper advice.

Leonard Schneider, Esq,, has extensive experience representing Texas cities, towns and municipalities.  Should you have questions regarding this article, please call Leonard Schneider for a complimentary consultation.  You may contact us at: 1 (800) 475-1906.

What is Civil Fraud?

What is Civil Fraud? How Does it Differ from "Criminal Fraud"?(Updated June 18, 2018):  According to the Association of Certified Fraud Examiners, money lost due to fraud costs businesses and private parties over $3.5 trillion per year. This information, coupled with their assertion that instances of fraud have been dramatically increasing within the last few years, offers an eye-opening revelation not only for business, but all citizens of the United States. Individuals, businesses, and health care providers alike must become more informed on what fraud constitutes. This article intends to help inform readers regarding the irregularity of definition, differences in governmental levels, and the distinguishing characteristics between civil and criminal fraud.

Civil fraud cases are complex and can have substantial effects on your business and on your personal assets. This, however, becomes concerning news upon learning that civil fraud does not have a strictly uniform definition. Generally, fraud is founded upon a willful misrepresentation of past or present fact. Courts have defined fraud as trickery, deceit, intentional misrepresentation, concealment, or nondisclosure for the purpose of inducing another to part with something of value. It also includes false representation of a matter of fact by words or conduct or by the concealment of what should have been disclosed that deceives or is intended to deceive another so he shall act upon it to his legal injury. See In re E.P., 185 S.W.3d 908 (Tex. App. Austin 2006).

I.  Common Elements of Civil Fraud:

These elements found in Texas legislation represent most legal definitions of fraud:

  1. There was a material representation made that was false;
  2. The person who made the representation knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth;
  3. The person who made the representation intended to induce another to act upon the representation; and
  4. The person to whom the material representation was made actually and justifiably relied on the representation, which caused the injury.

See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

Similarly, Virginia offers much of the same structure:

A party alleging fraud must prove by clear and convincing evidence(1) a false representation, (2) of a present, material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reasonable reliance by the party misled, and (6) resulting damage to him. See Thompson v. Bacon, 245 Va. 107, 111 (1993.)

II.  Civil Fraud at the State Level:

Nevertheless, courts have broadly defined the elements of civil fraud in various situations and there is no single definition that covers civil fraud entirely.  There are laws passed by the legislature that define fraud.  Courts of law have provided common law definitions of fraud. There are actions for negligent misrepresentation, a cause of action which is similar to fraud. It then becomes pertinent to mention that fraud by itself is not a fact, but rather a conclusion that is reached after the facts of the relationship or transaction complained of have been reviewed.

It is also important to note that fraud and legislation concerning fraud often vary from state to state. That is to say, certain jurisdictions give way to different interpretations regarding what exactly constitutes civil fraud, such as certain requisites that qualify committed acts as fraud or various burdens of proof needed in a given case. Texas and Virginia (both mentioned above), are both Common Law states, and share similarities in the make-up of their legislation. However, one might observe differences, for example, in Louisiana, where the governing body is guided by Napoleonic code. While certainly not vastly different in content and structure, less uniformity certainly can lead to more room for interpretation, as has been the status quo regarding civil fraud. Though most state legislatures can agree on the above elements of fraud as they apply specifically to the civil sphere, it is vital to recognize that state legislation can indeed vary.

III.  Civil Fraud at the Federal Level:

As previously discussed, civil suits regarding fraud centrally focus on restitution on behalf of the victim. At the federal level, the victim is the United States government, and one of the primary methods through which civil suits are filed is through the False Claims Act (FCA). The False Claims Act was enacted by Congress in 1863. Though concerned with the fraudulent practices of suppliers to the Union Army in the Civil War, the FCA is still heavily utilized today and provides relevant information regarding the definition of Civil Fraud holistically. The Department of Justice states:

A person does not violate the False Claims Act by submitting a false claim to the government; to violate the FCA a person must have submitted, or caused the submission of, the false claim (or made a false statement or record) with knowledge of the falsity. In § 3729(b)(1), knowledge of false information is defined as being (1) actual knowledge, (2) deliberate ignorance of the truth or falsity of the information, or (3) reckless disregard of the truth or falsity of the information (DOJ).

This definition sheds light on the similarities of civil fraud at all governmental levels with the unifying factor being the knowledge of the falsehood of an individual’s own statements, claims, etc. The FCA describes the seven types of conduct that result in liability and appear in the act as follows:

(a) LIABILITY FOR CERTAIN ACTS. (1) IN GENERAL.—Subject to paragraph (2), any person who—

 (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

 (B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent;

 (C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G)

(D) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property;

 (E) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;

 (F) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge property; or

 (G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government,

 is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000 … plus 3 times the amount of damages which the Government sustains because of the act of that person

See 31 U.S.C. §§ 3729 – 3733

As previously mentioned, the False Claims Act is one of the most effective tools used by the government to combat fraud. It should come as no surprise then that the FCA is primarily targeted at health care providers. In fact, over 80% of the recoveries derived by the FCA come directly from the health care industry. Notably, the private right of action, or qui tam, provisions of the FCA make it one of the most widely used and accessible tools, because private individuals are, such as employees and patients, can bring suit on behalf of the government. FCA litigation is highly complex, with many technical and pleading requirements.

IV.  Differences in Civil Fraud versus Criminal Fraud:

Perhaps the most confounding aspect of fraud, distinguishing between civil claims and criminal proceedings offers deeper understanding into how fraud cases are dealt in all variations of government. The following aspects help identify whether a fraud case is civil or criminal, and the accompanying actions that follow both activities.

  • Origins of Civil and Criminal Fraud Cases.

The first distinguishing aspects to notice are the manners in which civil and criminal cases are brought about. In Civil fraud cases, claims are often private party disputes. In other words, if an individual is suspected of committing fraud, the alleging party initiates and pursues the case. In the criminal realm, proceedings are brought about by regulatory authorities, the government or extensions of the government, and are tried criminally. Criminal cases can be tried by local, state, or federal prosecutors.

  • Level of Success Required for Conviction for Civil and Criminal Fraud.

One key difference between both types of fraud is that damage must actually occur to the victim in a civil fraud case. The alleging party must be able to demonstrate that they suffered damage as a result of their reliance upon the false representation. In contrast, criminal cases only require that fraudulent activity has occurred with the intent to harm another party. In other words, fraudsters need not succeed in damaging another party, prosecutors only need to establish their intent in doing so.

  • Differing Burdens of Proof for Civil and Criminal Fraud.

The most important difference between Civil and Criminal fraud contends primarily with the amount of proof needed to convict within each individual case. As we know, criminal proceedings require prosecutors to prove guilt “beyond a reasonable doubt”. Civil cases however, require a much lower standard to prove an individual’s guilt. In civil law, the burden of proof in trial is known as the “balance of probabilities” or the “preponderance of evidence”. In this scenario, one party’s case only needs to be stronger than the other side. In essence, the alleging party need only cross the fifty percent threshold in order to succeed in conviction.

  • Severity of Punishment for Civil and Criminal Fraud.

As one could guess, the outcome of civil and criminal cases produces significantly different results. Civil claims focus largely on recovering monetary compensation on behalf of the victim. Civil claims often do not reach completion within the litigation process due to negotiation from both parties’ counsel. As for criminal proceedings, prosecutors pursue alleged fraudsters on behalf of the state. In other words, those convicted of criminal fraud are subject to incarceration, fines paid to the state, as well as financial compensation to victims. Referencing our previous discussion regarding variations in legislation at the state level, citizens of different states may be subject to harsher penalties based upon where they live. That is to say, the punishment for both civil and criminal fraud offenses is subject to state statutes. The nature of the penalty will often depend on the severity of the crime committed.

V. Conclusion:

With the inherent costly and expensive nature of fraud, along with the continued growth of instances of fraud within the United States, it is important not to overlook where and when fraud can occur. State legislation can offer different judicial interpretations based upon the state in which you reside. Beyond the non-uniformity regarding the legal definition of fraud in the United States, fraud cases are complex and can result in significant penalties. This culminates in a difficult area of practice that requires a firm that understands the nuances of state laws concerning fraud and the role of the False Claims Act at the federal level.

Are you or your practice facing allegations of civil fraud or criminal fraud?  Call the health care lawyers at Liles Parker for a free consultation.  1 (800) 475-1906. 

Healthcare Cloud Computing – Compliance Risks

Healthcare Cloud Computing(August 14, 2012):  Cloud computing is in the process of revolutionizing the way that individuals and businesses store, receive, and use their data. You may have heard about it through companies such as Google, Apple, and Microsoft, all advertising sophisticated cloud computing services. But what are the risks your organization faces with respect to healthcare cloud computing?

I.  What is Healthcare Cloud Computing?

Essentially, “healthcare cloud computing” is the process of using various offsite computer and server resources that are delivered to users remotely through the internet. You use a program on your computer to access data, software, and powerful processing resources at a remote location. Because nearly all of the data storage and processing is done remotely, there is less of a need for high-powered, sophisticated computers at a user’s location, meaning individuals and small businesses can access computer tools that had previously only been reserved for the largest of corporations. In fact, a recent survey by Microsoft found that 39% of small business owners were beginning to engage in some sort of cloud-based computing.

II. Risks of Healthcare Cloud Computing:

Reliance on healthcare cloud computing can expose a provider and his / her practice to a variety of very serious risks.  Chief among these risks is the potential for a substantial privacy breach. Because data and data systems are maintained offsite, a provider, biller, or facility cannot ensure that the data contained on these remote servers is properly secure. As you know, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) governs the use of Protected Health Information (PHI) through its Security and Privacy Rules. These laws, administered by the Office for Civil Rights (OCR), protect the privacy of individual patients by setting out rules and repercussions concerning the wrongful use or disclosure of PHI. Under HIPAA, and the HITECT Act of 2009, there are 4 tiers of potential penalties a “covered entity” might face for wrongful use or disclosure or a security breach. Notably, nearly every healthcare provider is, at this point, a covered entity.

Despite an awareness that both known and emerging risks are present, many health care providers appear to have resigned themselves to the fact that the unparalleled convenience of healthcare cloud computing more than makes up for the potential dangers faced when using this medium.   Notably,  many cloud computing services advertise that they are HIPAA compliant or have undergone an SAS 70 Type II audit. Be careful – these audits can greatly vary in terms of their adequacy and sophistication, and may continually fail to meet the standards of HIPAA and HITECH. On top of this, as a health care provider, you are not in a position to ensure that the cloud computing company will continue to meet these standards.  In any event, should a breach occur – you will still be on the proverbial “hook” with OCR and its auditing contractors for any breaches that might occur.  Your decision to store PHI on a cloud computing server will not alleviate you of your obligation to safeguard patient medical records and personal information.  You are ultimately responsible for PHI entrusted to you by your patients, not the cloud service provider.   There are a number of technical security concerns that you should understand:

  •  First, how is data stored at the 3rd party site? Is the data of all clients thrown together on one server or on one hard drive, or does each client have a dedicated server? In addition, what if a server has a technical failure? If such an event occurs (as it inevitably will), the 3rd party vendor needs to completely destroy any PHI on their servers and have an available backup to ensure that the data still exists in some form. It is difficult for both you and the 3rd party vendor to guarantee this.

  • Second, transferring data to and from your “cloud” must be done through a secure channel (that is, “https://”). You need to specifically inquire with a cloud vendor whether a dedicated, secure connection can be established so that the “highway” through which your data passes cannot be accessed by others.

  • Third, the interface your organization uses to interact with the remote cloud server is at risk for security breaches, and you should ensure that the 3rd party host has developed properly secured interfaces. Again, this can be hard to do.

  • Finally, and probably most importantly, what about the employees of the remote cloud service? They generally have access to a substantial amount of sensitive data, and you have no ability to train, discipline, or terminate those individuals should wrongdoing occur. As you know, next to the theft of laptops and other mobile electronic devices, curious employees accessing unauthorized PHI is the most common type of breach under HIPAA. Couple that with a 3rd party vendor whose employees over whom you have no control, and it could mean substantial trouble if an individual employee wants to start exploring your patients’ medical records.

III. Conclusion:

As a result of these serious concerns, we strongly recommend that providers continue to use an internal server stored onsite. While it can be more expensive, it’s the only true way to ensure that your patient’s PHI is protected in accordance with HIPAA’s Privacy and Security Rules. In addition, you should consider conducting an internal HIPAA audit of your physical security, administrative safeguards, and electronic transmissions. Importantly, this audit should be done through counsel, so that any concerns may be reasonable covered by the attorney-client privilege.

Robert LilesHealthcare Lawyer counsels providers on HIPAA compliance risks, HIPAA breach notification and implementing effective compliance plans.  In addition, Robert performs gap analyses and internal reviews, trains healthcare professionals on compliance issues, and represents providers in Medicaid and Medicare post-payment audits and appeals. For a free consultation, call Robert today at: 1 (800) 475-1906.

FCA Statute of Limitations Issues

FCA statute of limitations issues can be quite complex.(August 10, 2012):  The False Claims Act (FCA) is the primary civil enforcement used by the government to address the improper submission of false or fraudulent claims to the government for payment.  Under the FCA, a defendant can be held liable for significant penalties and treble damages, per false claim.  Moreover, under the FCA, a whistleblower can bring an action on behalf of the government and may be eligible to receive a share of any recoveries.  How long does a defendant have to bring an FCA case?  As discussed below, FCA statute of limitations issues can be somewhat complex.  If your are facing a potential FCA case, it is imperative that you retain experienced legal counsel to advise you of your rights.

I.  FCA Statute of Limitations:

The statute of limitations for False Claims Act (FCA) cases is quite long and presents several complex issues to be considered. The basic FCA statute of limitations is 6 years, or 3 years after the government knew or should have known about the fraud, up to a maximum of 10 years. This often raises questions including when “should” the government know about a certain fraud, especially if it long standing and continuous? What if the government should have known about the case 4 years ago, but the 6 year timeframe has not yet run?

II.  Impact of the Wartime Suspension of Limitations on FCA Cases:

A little known statute was recently used in a case in Texas to completely toll the statute of limitations. The court in U.S. v. BNP Paribas SA employed the “Wartime Suspension of Limitations” statute to toll the statute of limitations beyond what it would have normally been. The Wartime Suspension of Limitations provides that, “the running of any statute of limitations applicable to . . . fraud or attempted fraud against the United States or . . . connected with or related to the prosecution of the war . . . shall be suspended until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation . . . or concurrent resolution of Congress.” 18 U.S.C. 3287.

Importantly, the suspended statute of limitations must be “connected with or related to the prosecution of the war.” In the Paribas case, the court in the Southern District of Texas (which includes Houston) held that a major French bank whose subsidiary was involved in exporting was sufficiently related to the prosecution of a war to toll the FCA statute of limitations, despite the fact that the company is not specifically a contractor for the Department of Defense or otherwise involved in war efforts. The Paribas decision raises many questions:

  • What constitutes a “war”? The United States’ last official declaration of war occurred on June 5, 1942 against Romania , Hungary, and Bulgaria during WWII. But as you know, the United States has been, and currently is, frequently engaged in military conflicts around the globe. What about NATO peacekeeping missions, or limited interventions? Under Paribas, it appears that “war” is construed broadly, and any military intervention funded by Congress could be sufficient to activate the statute.
  • What is the connection or relation of the war to the specific fraud?  In Paribas, the defendant was an exporter of grain dealing with the Department of Agriculture. While not specifically related to the war, an argument can be made that the exportation of food supplies, especially by a major international company, could have a sufficient effect on our military, its ability to obtain food and other supplies, and international relations. But what about healthcare? Certainly claims made under the TriCare program that were found to be false could be tolled by the Wartime Suspension of Limitations. But what about standard Medicare and Medicaid claims? Is the health of the nation sufficiently connected to war efforts to justify completely tolling the statute of limitations?

Obviously, this decision raises important concerns for anyone involved in FCA litigation, or anyone thinking about engaging in FCA litigation. On both sides, whistleblowers and FCA accused alike, this should be a major issue that your legal counsel must consider.

Healthcare Lawyer

Healthcare Lawyer

Robert Liles and Paul Weidenfeld are experienced in counseling clients on FCA statute of limitation and other litigation related matters.  Moreover, they have handled a variety of FCA cases. For a free consultation to discuss the FCA statute of limitations issues raised in Paribas or for other questions regarding the FCA, please call today at: 1 (800) 475-1906.

Guide to Efficient Business Transactions: Part III

Efficient Business Transactions(July 6, 2012):  This article is a continuation of our discussion on how a business person can manage attorneys and other professionals in the legal process of his business transactions, to minimize the costs and risks.  A link to Part II is provided:  Click here for Part II.

 

 

I.  Efficient Business Transactions, Continued:

(k)  Conform to Conventions about Roles of Parties in Transactions. In most transactions, the buyer, investor or lender (i.e. the money side of the deal) will expect their legal counsel to produce the first draft of most documents in the transaction, on which the other side will make comments and negotiate changes. While this means the documents start out skewed in favor of the money side, there are sound reasons why the seller or issuer side should allow this. If the seller, say, insists on providing a first draft document, the process of the buyer negotiating it into a form signable by his side will add more time and expense to the closing for all concerned than will be justified by any drafting advantage.

(l)  Understand what Legal Documents are involved in your Deal, and What Function Each Serves. The day is long past (if it ever came) when a business person can turn an important transaction over to legal counsel, say “Close this deal for me please”, and walk away. By now the reader will see that his or her relationship with their professionals should be less like a patient’s relationship with a physician than a boss’s relationship with highly-skilled employees. Your transaction counsel may have been through a hundred transactions, and you through none, but you still need to play a leadership role, and make business (i.e. economic) decisions. While you don’t need to know all the law to do these things, you do need to understand the basics, and know the functions on a business level of all significant documents.

(m)  Respect the Negotiation Process. Store up Credits when you Concede a Point. Table small negotiating items, and Trade them down the road for a bigger point you Know Is Coming. Westerners often view the process of negotiation with disdain. I have had clients approach a negotiation saying “I will just open with my bottom line number, and let them take it or leave it. We will cut to the chase.” This is seldom effective. Business people of all cultures hate to take a first offer in any important matter. Rigid intransigence in negotiation usually repels the other side. And humans seldom view any decision as binary, with a fixed bright-line dollar amount where it stops being desirable. The prudent business person allows for this, starts every negotiation a bit away from his bottom number, and assumes the other side is doing likewise.

In section (g) above I mentioned the psychological bonding that usually arises when parties negotiate. There is a natural tendency for a party winning a point in negotiation to feel softer about the next point. Bear this human trait in mind, and use it.

If you are communicating well with your professionals, they will alert you to issues they expect to emerge in the transaction process which may be serious problems for you. Every significant deal has hurdles. One of your biggest challenges will be to keep track of these matters and plan how to deal with them. Most issues in a business negotiation are more important to one side than the other. Experienced deal people look for points more significant to the other side than to themselves, and position themselves to grant the other side one or more “gives” on such points, in exchange for a concession important to them.

(n) Keep Business and Legal Issues Separate. Don’t let Attorneys get Stalemated; Make sure Yours Knows when to Hand-off an Issue. After the drafting side presents its initial draft of a transaction document, the commenting attorney reads the document, flags language possibly creating a problem or “issue” for his client, speaks to his client if necessary to clarify what are and what aren’t problems, replies to the drafting attorney with descriptions of the issues, and (usually) proposed text changes to fix them.  When the commenting attorney describes issues with the drafter, he does so in legal terms, while he normally communicates issues to his client in business terms.

One of 3 things must result from the above: Either (i) the drafter agrees with the commenter about both the issue and the text change; (ii) the drafter agrees an issue exists and with the concept of the proposed resolution, but disagrees on the text change; or (iii) the drafter disagrees on the issue and the proposed text change. In case (i) things are obviously fine, and the process continues without interruption. In case (ii), competent attorneys will always be able to craft some mutually agreeable drafting fix, and get to case (i). In case (iii) however, if good faith discussion doesn’t produce case (i) quickly, prolonged haggling by the attorneys becomes wasteful. Your attorney (whether he is the drafter, or the commenter), should recognize the stalemate in this situation, table that discussion with opposing counsel, and add the issue to a list of issues to be referred to you. Further conversation between lawyers is probably useless, and your counsel should know this.

 When all documents being drafted have been covered in the process described above, sit down with your counsel and review the full list of open issues. A skill absolutely vital for competent transaction counsel is the ability to translate each issue for you from legal to business terms with perfect clarity. From this conversation, decide what is and what isn’t worth negotiating. Issues falling into the former category are now identified as business issues. These you must resolve with your business counterpart in the transaction, failing which of course the closing process must halt. The point however is that lawyers must never be the ones to hold on to a stalemated issue.

(o) Be ready to Step In if other Professionals Over-Negotiate. If progress seems too slow in negotiating the legal documents, you may discover that opposing counsel is producing too many case (ii)s and case (iii)s in the process described above, which means he or she is either asking for or disagreeing with changes which aren’t really significant to their client. If that occurs, you should be prepared to complain politely but clearly to your counterpart.

I mention this with some hesitation, because it can easily be counter-productive, and you must tread carefully. It’s hard for you to know what is and isn’t truly significant for the other side. Also, be wary if it’s your lawyer who says the other is over-negotiating; perceptions like that are common but sometimes not fair. As you will appreciate, wrongly saying the other side’s attorney is behaving badly violates the courtesy and politeness rule above.

(p)  Avoid Too Many Turns of Documents. This is most important in negotiating the umbrella agreement, but applies to other documents too. During the document negotiation phase of the closing process, there is a temptation to urge the drafting lawyer to hurry making redrafts of the umbrella agreement, in an effort to speed the closing process. The problem here is that each time the drafting attorney redrafts a document, the commenting counsel has to read it and perform the discernment process described in (l) above. This is the most exacting work a transaction lawyer ever performs, and as mentioned in the Introduction, is the single most expensive part of the legal process. The drafting lawyer should not use the redrafting process to tell the commenting lawyer which requested changes the drafter’s side disagrees with. Instead, any decline of requested changes should be communicated verbally, and redrafting should wait until all known issues in the document are resolved at least in principle. This means that redrafting must wait until the business people finish the negotiation described in (l). In rare cases, redrafting may proceed although business people are stalemated on an issue, and the relevant text is bracketed in the redraft when this happens. But the only surprises a commenting lawyer should ever find in an intermediate draft is how the drafter chooses to phrase some concept that has been agreed on. Otherwise both the redrafting work and the review and comment work tend to be wasted, and previously-flagged issues get flagged again and re-negotiated. This slows the closing process and wastes legal fees.

(q) Look out for Legal Opinion Letters. Smoke Them Out Early. Lawyers loathe giving written opinions, and perceive them as professionally risky, although very few lawyers are successfully sued over them. Clients seldom appreciate the time they necessarily require, and the resulting bills. Every law firm has rigid internal procedures to follow in signing opinions, and they usually involve partners who aren’t making money from the client in question learning the facts and law involved and approving the opinion. This is a disagreeable experience for all concerned.

Opinion letters are therefore occasions for delay and conflict in legal closings. The best practice is for each party to advise the other as early as possible (around the time the 1st draft of the umbrella agreement is produced) what opinions they will need, with requested text, and what qualifications the signing attorney must have (usually, of what state’s bar must he be a member). Get the texts of opinions your side must provide to the relevant lawyer promptly, and find out if he or she is prepared to give them. Some deviation from requested texts always occurs, but a competent attorney will be able to tell you what if any parts require significant changes. The goal here is for any negotiations over opinions to go on in parallel with the drafting of the documents, which allows time for issues to be resolved. Don’t let these negotiations start near the projected closing date, which is exactly what will happen if opinions are not addressed early.

(r) Arbitration. Arbitration clauses pass in and out of fashion, and are touted as cheaper alternatives to court litigation. Most of the cost savings in arbitration come from the reduced or absent discovery, which in court litigation is the most expensive part of 90% of all cases. In my experience arbitration produces a less predictable result, meaning verdicts which don’t naturally flow from the facts occur more often. I also believe the abbreviated process gives the arbitrators less confidence in their own conclusions than a judge usually has in a court case, creating a reluctance to select clear winners and losers. (It should be appreciated that our laws tend to force courts to determine clear winners and losers). So arbitrators more frequently just “split the baby”; and obviously this favors a contract breaching party. Based on this, my advice to clients is to decline arbitration clauses if they expect to be the party trying to enforce the hard contract terms in a business dispute.

II. Conclusion:

Legal transactions require owner’s management to be efficient like any other part of a business operation. Selection of and reliance on an able transaction lawyer who works well with you is vital to an efficient closing process. Likewise, hewing to some simple rules and procedures that are proven over time can save time, legal fees, and wear and tear on the parties.

Healthcare LawyerDavid Parker is the managing member of Liles Parker in our Washington, D.C. office. David handles corporate finance, structuring and negotiating secured debt and loans, corporate governance and compliance, and business transactions. If you are interested in buying or selling a business, or raising or lending capital, call David for a free consultation today at 1 (800) 475-1906.

Guide to Efficient Business Transactions: Part II

(June 24, 2012): How a business person can manage attorneys and other professionals in the legal process of his business transactions, to minimize cost and risk and maximize efficiency – Part II of III.  Click here for Part I. Check back soon for the third installments.

I. Precepts and Procedures.

(a) Choose an Attorney With Whom You are Comfortable. Obviously your transaction counsel must have a thorough working knowledge of the legal subject matter of your transaction, and sound work habits, so no discussion is needed  on that. Instead, I mention that you should employ only attorneys you yourself are personally comfortable with.

Efficient Business TransactionsYour comfort should be driven by your perception of the attorney’s loyalty, the sense he or she is looking out not just for the legal interests of the client entity, but for your personal interests in the context of your organization. In my experience, it is hard to protect the first without looking after the second. It should be driven by an ease of communication between you, which should explain itself. It should involve knowing you share a common understanding about  priorities in your business & his or her law practice. This is difficult to describe clearly, and can take time to develop, but comes down to trust that, in looking at any set of facts, each will know instinctively what is important to the other.

The working relationship between a business person and his or her transaction lawyer should amount to a comfortable bond. This relationship aspect is at least as important as technical skills, and without both it will be hard for either of you to work efficiently.

(b) Address Cultural Differences before you Start a Deal. This Guide is pitched to transactions where both principals are people involved in commerce in English-speaking countries. Personally I have observed a common business culture to exist in the United States, Canada, England, India and Australia, such that business people from such countries can usually interact effectively with each other. I expect the same is true in all Common-law countries. Outside those areas, however, real cultural differences exist in business practices, in addition to any language barrier. It is outside the scope of this Guide to advise about specific cultural differences. Suffice it to say that before negotiating even the first term, a prudent person contemplating a transnational deal where cultural norms vary widely needs to secure not only attorneys knowledgeable about laws in all relevant jurisdictions, but also business-level advice for  the transaction from someone experienced in the foreign culture.

(c) Start with a Letter of Intent. Go from the General to the Particular.  On occasion I have had transaction clients say, “To save money and time, we are skipping the LOI and going straight to definitive documents.” Nothing is more counter-productive. Spend the time needed to draft and sign a letter of intent before anything else. Once deal terms are nailed down in principal, it is vastly easier to reach agreement on particulars. More detail is better than less. In my view it is less important whether the LOI is binding or non-binding, as long as both parties sign it. There is real value in both parties signing an LOI, even if it isn’t legally binding. In my experience a party may walk away from a deal with a non-binding LOI, but if they do proceed with it, they find it hard to go back on the terms in the letter.

(d) Establish a Closing Timetable, but Be Reasonable. Generally one or both parties to a transaction have hard business reasons why it must be concluded by a particular date, but even if this isn’t the case, your Letter of Intent should set the expected date for closing, and possibly for intermediate steps like completion of due diligence. Overly long closing processes create outsized legal bills, but so do unrealistically short ones. An experienced transaction lawyer will know what is reasonable. Expect all dates to slip, of course, so allow some margin of time. Once document drafting and negotiation starts, it should continue until completed and the documents are signed. When lawyers halt their drafting work for over about one week, time is inevitably required to get them back up to speed.

(e) Engage All Professionals Early; Get All Their Fingerprints on the Deal. At or before the LOI stage, identify what legal and other professionals will be needed to close the transaction, and engage all of them up front, not just your transaction counsel. For instance, most M&A transactions call for advice from a tax accountant or lawyer, whom you should consult before agreeing to any transaction structure. If the transaction will involve retirement fund issues, for example, engage ERISA counsel early on. Other specialist disciplines must be handled similarly. At early stages of the transaction, each specialist needs to do only enough work to advise you on the decisions required at that point. This need not be an invitation to heavy billing. Competent specialists will know how to monitor early transaction stages with minimal expenditure of time, while alerting you to issues which affect your LOI or other early process; and they should give you clear assurances on this point before their engagement. If the transaction fails early-on, these bills should not be burdensome. The aim here is to avoid having to re-do steps in the transaction process because of issues you knew about all along but failed to address early enough. The biggest inefficiency you can avoid is the drafting and negotiation of the same document multiple times.

(f) The Other Party Should Engage his Professionals in Synch with You. Get their Fingerprints on the Deal Too. Especially in cases where there is no binding agreement until definitive documents are signed, you will be at a disadvantage if the other party to your transaction postpones hiring his professionals while you move ahead with yours. What often happens in such a case is the other side’s attorney or other professional steps into the transaction after you have spent money getting documents drafted, and reveals issues which make the terms as drafted impossible for his client. You are forced to repeat significant drafting and other steps. If the other party insists on delaying the introduction of his professionals, it is generally a sign he is uncommitted to your deal, so be warned.

(g) One Lawyer as Quarterback for All Attorneys When legal specialists are needed in a deal, they should report their advice and counsel directly to you, but their work should be scheduled and coordinated through your transaction counsel. They should keep him apprised of their progress and particularly any problems or delays they encounter; and in most cases your transaction counsel, who has full understanding of all aspects of your deal, will be able to help you evaluate a specialist’s advice, and make needed decisions based on it. 

(h) Use Courtesy and Politeness Whenever Possible. Make sure Your Team Does Likewise. While not all practitioners agree on this point, I find that a party is best served by consistent politeness and courtesy with their counterparts except in the most extreme circumstances, and cloaking their adversarial emotions as much as possible. While it can be argued that each party will use every advantage available to forward their own monetary interests in any transaction, whether or not they feel personal animus against the other, my experience is otherwise. A transaction is never entirely a zero sum game, and pleasant dealings with the opposite party usually pay off. Transaction professionals (especially younger ones) may need reminding on this point.

(i) Match yourself with a Bargaining Partner on or near your Level of Seniority.  Avoid Negotiating with a non Decision-maker. If you are the principal on your side of a transaction, and you bargain with someone lacking authority to make decisions on the other side, the conversation becomes a downward ratchet for you. You can make a concession which grants the other side a victory, finally and irrevocably, but the other side can’t. The best you can get from him or her is “I’ll go back to my Principal and see if they agree.” The absent principal isn’t psychologically involved in the concessions you are making, and seldom agrees to his side’s concession.

(j) Don’t Meet Alone with the other Side’s Professionals. By the same token, avoid placing yourself in a position to be lectured to by the other side’s attorney or other professionals, without your professionals being present. When this occurs the opposing professionals tend to describe the facts under discussion, and also the law, in ways subtly or not so subtly less favorable to you than they truly are. If your professionals are present, they will promptly object, or the other side won’t try this in the first place. Don’t let the other side play with your head in this way.

II. Final Comments:

Check back soon for Part III, and be sure to check out the rest of David Parker’s articles here.

Healthcare LawyerDavid Parker is the managing member of Liles Parker in our Washington, D.C. office. David handles corporate finance, structuring and negotiating secured debt and loans, corporate governance and compliance, and business transactions. If you are interested in buying or selling a business, or raising or lending capital, call David for a free consultation today at 1 (800) 475-1906.

Guide to Efficient Business Transactions: Part I

(June 18, 2012):  How a business person can manage attorneys and other professionals in the legal process of his business transactions, to minimize cost and risk and maximize efficiency? Let’s look at a few these issues below.

I. Goal of this Guide; Goals of Your Business Transactions.

Making Business Transactions Happen

This Guide is written for those handling important business transactions, who will need to engage and direct one or more attorneys and other professionals in the process. It will also be useful for a junior person in a business who expects to have responsibilities in legal transactions. The goal of course in any legal transaction is to get the deal closed at minimum cost, not just in money and time, but also in psychic energy, goodwill and risk.

The desire to save money and time are obvious; but a business person needs to focus his or her mental energy (a very finite resource) on many tasks and problems, and so should also manage business transactions to avoid over-sized drains on themselves.

Additionally, businesses depend on the goodwill of many constituents. In a transaction, they need principally the goodwill of the other transaction party. But they need the goodwill also of any banker or finance source, landlord and government regulator too. Customers’ and employees’ goodwill are always critical. Business transactions have potential to alienate any or all of these key players in your business life, and need to be handled with a view to avoiding unnecessary stress and inconvenience on them.

Attorneys and other business transaction professionals charge by the hour, so managing your deal so it can close in less time is the obvious way to save money. But if attorneys’ work can be done in an orderly sequence employing some simple rules, they will inevitably be more thorough in their work, communicate their advice to you better, strengthen your bargaining position with the other parties, and avoid your having to accept adverse deal terms. The result is that you and your business bear less risk from the transaction, meaning there is a reduced probability that you or your business will lose money after the deal closes.

Management of an orderly and predictable legal process in a closing also reduces the irritation inflicted on others involved. It will head-off conflicts with the other transaction party, with whom in many cases you will be having business dealings for a substantial time to come. It also lets you obtain the cooperation needed from other players with minimum fuss and bother.

This Guide sets out a few key considerations, and some simple steps to take (or avoid), in managing the legal closing process of a transaction to achieve these goals. We will also try to demystify the closing process of business transactions as well.

II. Introduction to Business Transactions.

(a) Parts of the Deal Document and their Function. Most business transactions of significant size are governed by a set of transaction or “deal” documents consisting of multiple documents which each perform a narrow function, plus an “umbrella” agreement which governs the entire transaction and ties the other documents together. In an acquisition, for instance, the umbrella document will be the Asset Purchase Agreement, Stock Purchase Agreement or maybe Agreement and Plan of Merger. In a bank loan it is usually a Loan Agreement. Normally 50% or more of the legal costs of a closing are spent on drafting and negotiating this “umbrella” agreement, so most of this Guide should be understood as How to Negotiate, Draft and Consummate Umbrella Agreements Efficiently.

Umbrella agreements necessarily address the same matters, and so tend to be organized in a predictable pattern, including:

Recitals. Umbrella agreements normally begin with recitals or Whereas clauses, which explain the background and circumstances of the business transaction, and say Who we are and how we’ve come to be signing this document. On a 30,000 foot level they should explain what each party hopes to get out of the deal. While the rest of the agreement is written for the parties, recitals are addressed to a stranger coming onto the transaction cold. Any lawyer who has found himself in court trying to explain to a judge and jury why some particular wording in a contract was a vital part of his client’s bargain can attest to the importance of recitals. Nuances and circumstances that are obvious during a business transaction are often very unobvious years later when an agreement gets enforced. Without a clear understanding of these things, however, a trier of fact will inevitably misunderstand the significance of many terms even in a simple deal. Recitals are the normal way to address this.

Definitions. One section contains definitions of words used repeatedly in the agreement. Often a word or term will become a shorthand expression for a complex process or concept, and can therefore control major deal terms. Definitions are always the focus of some negotiations.

Description of the Transaction Itself. The heart of the agreement describes the actual deal, such as exactly what is being bought and sold, or what moneys are being loaned or invested, and exactly what the money-provider is giving for it, and when. Some of this may require listing in attachments or “schedules” to prevent the document from getting too long.

What each Party says to be True. These are the representations and warranties each party makes to the other. Many facts will be un-knowable or difficult to discern to the party to whom they are important. So the other party, if he has a clearer view of the subject, will state what the facts are and agree that the first party can rely on them. The seller, the borrower or the securities issuer in a transaction (whichever is involved), will generally make more of these statements than the money-providing party because of the former’s greater knowledge of the business in question.

What has to Happen First. In most cases certain steps must be taken as preparation before business transactions can close, such as governmental or other third-party consents. Often, both parties have their own list of Conditions Precedent which are written as tasks the other side (or less often, themselves) need to complete before the party is bound to go forward with the deal.

Things the Parties agree to Do or Avoid Before, During & After the Closing. These covenants may address things as diverse as operation of the subject business, tax filings to be made, or handling of an important side-matter.

Risk-transferring. Each party normally agrees to take on himself certain risks that circumstances otherwise place on the other side, meaning “If X bad event occurs, I will  pay for it.”  This Indemnity section is the most technical writing in the document.  In most cases, there are dollar or other limits on how much the indemnifer can be asked to pay, and time limits after which he cannot be asked. Most significantly, this is the teeth to the representations and warranties; and like reps and warranties, this section is more likely to be useful to the money-providing party than to the seller, borrower or securities issuer.

Other Things. The rest of the umbrella agreement is supporting text to the above, such as  descriptions of where and how the closing will be conducted, and agreement on what jurisdiction’s laws and/or courts will govern if there is a dispute.

III. History of Business Transaction Documents:

It is an open secret that business transactions lawyers spend their lives plagiarizing from each other, and few if any transaction documents are ever drafted from scratch. All of us maintain sets of document templates and copies from prior deals, which we mine in our drafting work. The document bank of my own law firm is intricately divided into myriad subjects for easy reference, and runs to over a thousand documents. An experience that all business transactions lawyers share is reading a document drafted by another firm, seeing text that makes one say “Hey, that’s good language”, and then grafting the improved text into one or more of your own model documents.

There is a powerful reason for these practices, and our clients are the beneficiaries of them. You see, 99% of the substantive terms in business transaction documents were initially drafted, whether recently or in some predecessor agreement in the dim mists of history, to address an event that caused a lawyer’s client to lose money. My own documents contain many provisions I added or rephrased over the years after seeing business deals go sour.

Check back soon for Parts II and III.

Healthcare LawyerDavid Parker is the managing member of Liles Parker in our Washington, D.C. office. David handles corporate finance, structuring and negotiating secured debt and loans, corporate governance and compliance, and business transactions. If you are interested in buying or selling a business, or raising or lending capital, call David for a free consultation today at 1-800-475-1906

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