First Healthcare Compliance CONNECT April 2023

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You mentioned potential red flags. What are the consequences when you see all these red flags? What can happen? Vince: Oftentimes, folks will come to me and they’ll say I want to set up an asset protection trust and I want to control everything. That’s a huge red flag. You’re going to have to be comfortable with moving your assets into an irrevocable asset protection trust, to preserve those assets for your benefit, but you can’t retain too much control over those assets. And this is sort of where Catherine nuances Short of state law and trust drafting come into play. And really, it goes to how these documents aren’t formulaic. They need to be set up for the individual business owner, the professional doctor or person that is potentially subject to the to the liability of running a medical organization, doctor’s office and whatnot. So, there are lookback periods, and the red flag that happens is that the doctor or business owner comes in and they say, “I think I’m under investigation, but I’m not sure.” And then, all of a sudden, they’ll say, “We need to take certain steps to protect my assets. I’ve never done that before, I have an LLC, but I’m concerned, I may have some liability.” If you race to set up an asset protection trust after the fact, both a civil attorney and a criminal prosecutor can file motions to have the judge look at the transfers into those trusts and set those transfers aside, essentially unwinding the value in the benefit the trust offers. So, for example, in Nevada, and several other states, the look back period is two years. If a client comes to me today, and they want to start a new medical practice group, and they’re concerned about potential liability, perhaps they’ve invested a million dollars into the business, and they don’t want to lose the balance of their investments and holdings, they will want to set up this trust. As long as they’re doing that two years before they incur any potential liability, then they’re fine. Sean, could you discuss on civil forfeiture because of your background and what you focus on in your practice? Sean: Civil forfeiture essentially means that we think there may be some sort of illegal, ill-gotten gains, and we’re going to take it until you claim it, and then have to justify how it’s not. And so now the burden shifts entirely on the individual whose funds have been seized. And this is a favorite of local law enforcement, as well as the feds, they can go in, along with a search warrant, or just on their own and seize a bank account, for instance. And then you must administratively make a claim and then litigate it as a mini trial and basically justify your existence. So, it’s extremely burdensome for an individual or business to try and justify and explain. It’s an exorbitant amount of time and effort to try and do a tracing or not tracing. Sometimes you can negotiate it and sometimes you can’t. But civil forfeiture is a very powerful tool for the Department of Justice (DOJ) and its agencies. You know, DEA, FBI, IRS, are the ones that typically use is the most. What’s ahead, Lauren, any predictions for the year? Lauren: Sure. So, there are predictions that due to patients delaying receiving care, over the last couple of years, because of the pandemic, health care providers are anticipating an increased need for care, especially in the long-term care sector as well as care for chronic diseases, as well as behavioral health. And one thing that will be interesting to watch over the rest of the year, is the further integration and diversification of how that care is being provided. So, through telehealth, the integration from wearable devices and things like that, which, those issues, raise cybersecurity questions. There’s also a thought that there will be a greater level of investigation by the government and there’ll be greater scrutiny for FCA and AKS. 16 Panacea <strong>Healthcare</strong> Solutions LLC © <strong>2023</strong>
Vince, do you have further thoughts on our topic? Vince: I think my final thought is to plan for the future. In my practice, that’s key. If you’re in business now, and you haven’t planned, and you’ve got a concern, if you think you’ve got exposure, still plan now. It’s not too late. Whatever the big scary liability is that that is out there, there are ways to deal with that. It’s very unfortunate when folks come to my office too late. There’s very little we can do after the fact. So, that that’s my suggestion. Sean McKenna, Lauren Nelson, and Vincent Aiello of Spencer Fane LLP With 24 years of experience, Sean McKenna is a nationallyrecognized defense attorney who focuses his practice on defending executives and providers in healthcare enforcement, litigation, and regulatory issues, under civil or administrative investigation by the U.S. DOJ, OIG, and Attorneys’ General Medicaid Fraud Control Units, as well as in criminal investigations and matters involving federal and state governments. As a former ten-year Assistant United States Attorney, Associate Counsel to the Inspector General, and General Counsel for the U.S. Department of HHS, Sean also assists clients with internal investigations, compliance reviews, as well as advising on their compliance with state and federal fraud and abuse rules. Lauren M. Nelson has 16-years of experience litigating across the country on behalf of healthcare providers and executives, including hospital systems, physicians, rehabilitation centers and other providers in complex medical malpractice actions, licensing matters, and other business disputes. She specializes in a variety of cases, from catastrophic birth and spinal cord injuries to misdiagnoses and failures to treat. Lauren also counsels and represents physicians and nurses before State and federal regulators and licensing boards in all manner of investigations, reviews, and inquiries. Vincent Aiello helps business owners solve legal problems to secure revenue flow and reduce business risks. As a lawyer and business owner he has firsthand experience handling complex commercial litigation and transactional matters for his clients. His client base spans a broad spectrum of businesses including household-name consumer brands, banks, construction companies and family ventures. As legal counsel, he advises personal family foundations on managing and protecting their wealth. While each of his clients may take on a unique shape or size, they all face complex legal and business challenges, which is precisely where Vincent has focused his commercial legal practice. Contact Toll Free: 888-54-FIRST 17
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