Podcast Series: On Her Shoulders
Hosted by the Winstead Women’s Alliance

The Winstead Women’s Alliance podcast series, “On Her Shoulders,” led by Winstead is in honor of the inspiring women who have been working hard to ensure that the female voice is heard through their actions.


The second episode of Season 2, “Inspired Leadership,” features Dr. Prathibha Varkey, President of Mayo Clinic Health Systems. Prathibha discuss the inspiring work of caregivers and frontline workers during the ongoing pandemic.

Listen Here. 

Podcast Series: On Her Shoulders
Hosted by the Winstead Women’s Alliance

The Winstead Women’s Alliance podcast series, “On Her Shoulders,” led by Winstead is in honor of the inspiring women who have been working hard to ensure that the female voice is heard through their actions.


In Episode 1 of Season 2, Winstead talks to Jackleen Samuel, PT, DPT, CEO of Resilient Healthcare about various challenges from navigating a complex healthcare landscape to building her own company.

Listen Here. 

Winstead PC, a leading national law firm, today announced that it represented its client, MedProperties Realty Advisors LLC, in the sale and recapitalization of a portfolio of medical office buildings (MOBs) and other healthcare-oriented real estate to Remedy Medical Properties and Kayne Anderson Real Estate.

“The $350 million sale and recapitalization to Remedy and Kayne Anderson involved 23 assets in 11 states and covering over 1 million square feet of space,” said Andy Dow, a Winstead shareholder, Chair of the Real Estate Industry Group and member of the firm’s Board of Directors.

“A transaction of this size, and geographic scope, is complex and requires an innovative approach to close it on time, while meeting the diverse needs of all parties. It also speaks to how robust the current market is for healthcare real estate, the value of these assets and the confidence that the investors have in our client, MedProperties,” added Mr. Dow.

“MedProperties will retain an ownership stake in these assets and will continue to serve as the asset manager. They have acquired and financed the development of 4 million square feet of commercial real estate across 23 states, and we are delighted to be a partner with them,” said Cole Gearhart, a Winstead Shareholder.

Over 90% of the assets are MOBs. The transaction also included a Pennsylvania-based behavioral health hospital, a rehabilitation hospital and ambulatory surgery center in Ohio, and a rehabilitation hospital in Texas. The properties are located in California, Florida, Indiana, Kentucky, Missouri, North Carolina, New York, Ohio, Pennsylvania and Texas.

The Winstead team that works on this transaction include Andy Dow, Cole Gearhart, Justin HooverJarrod AzopardiGinger EpsteinNick Gerner, and Brad Kuntz .

Winstead’s Real Estate Industry Group serves as a leading resource for national and regional companies. With 175 real estate attorneys across eight offices, Winstead’s experience spans the full spectrum of real estate services.

Our client list includes many of the largest and most active real estate companies, institutional investors, mortgage lenders and loan servicers as well as individual investors and entrepreneurs.  In addition, Winstead has an active Construction Practice, Entitlement/Land Use Practice and Leasing/Asset Management Practice, enabling us to represent our clients through all phases of sophisticated real estate transactions.

Winstead’s real estate practice is listed in the Chambers USA Guide to America and a number of our attorneys are members of the American College of Real Estate Lawyers, the American College of Mortgage Attorneys and the Association of Life Insurance Counsel.

By March 2, 2022, HIPAA covered entities (healthcare providers, health plans, and healthcare clearinghouses) must report all 2021 breaches of unsecured PHI that affected fewer than 500 individuals to the Office for Civil Right for the U.S. Department of Health & Human Services (OCR).  Covered entities must submit these reports through the HHS web portal, located here.

This is a separate reporting process from breaches that affect more than 500 individuals, which must be reported to the OCR and local media when they occur.

Covered entities should have a detailed HIPAA incident log for each breach incident.  Such a log helps with easier reporting to OCR and should include the following items:

  • Breach tracking number (if you have one)
  • Breach dates, start and end
  • Breach discovery date
  • Number of individuals affected by the breach
  • Type of breach (i.e., hacking incident, improper disposal, lost, theft, unauthorized access, etc.)
  • Location of breach (i.e., desktop, EMR/EHR, email, mobile device, server, paper, etc.)
  • Type of PHI involved (i.e., clinical, demographic, financial, sensitive information, etc.)
  • Brief description of the breach
  • Safeguards in place prior to the breach
  • Dates for transmission of individual notices
  • Substitute notice options (if applicable)
  • Media notice (if applicable)
  • Mitigation efforts and other actions take in response to the breach

Further information on Breach Portal Required Information can be found here.

Please plan accordingly for your reporting needs.  While you may submit all breach reports on one date, you must submit a separate report for each breach incident.  And if you discover additional information that supplements, modifies, or clarifies a previously submitted report, you should amend your report by addendum through the OCR portal, referencing the transaction number from the initial breach report.

As more fully discussed in the in-depth summary by our colleague, Taylor White, the U.S. Supreme Court blocked the OSHA emergency standard mandating vaccines in the American workplace.  This ruling nullifies OSHA’s intended enforcement of the mandate after January 10, 2021.

The primary rationale for blocking the OSHA mandate was that it was a “broad public health” measure, while OSHA’s overriding purpose is workplace safety.  The Supreme Court acknowledged that COVID-19 presents workplace safety concerns, but that the proposed rule addresses public health safety, which Congress did not authorize OSHA to oversee.

Where does this leave the vaccine mandate directed to healthcare workers?  Well, the Supreme Court leaves it in place…. for now.

Much like the OSHA emergency standard, the healthcare worker mandate is an interim final rule with comment period (IFR) issued by the Centers for Medicare and Medicaid Services (CMS).  The IFR revises Medicare conditions of participation (COPs) such that healthcare facilities that participate as providers in Medicare and Medicaid must ensure that their covered personnel are vaccinated against COVID-19.  See 85 Fed. Reg. 61555 (Nov. 5, 2021).  While Congress did not authorize OSHA to oversee public health safety, Congress has authorized the Secretary of Health and Human Services to analyze and implement COPs to ensure effective and safe healthcare environments, including conditions related to infection control and prevention.

As with other mandates, a number of states filed two separate lawsuits to challenge the CMS directive.  US district courts sided with the states and enjoined enforcement of the IFR.  CMS appealed to the Supreme Court when intermediate courts of appeal declined to stay the district court injunctions.

In its 5-4 ruling, the Supreme Court affirmed that one of the most basic functions of CMS is to “ensure that the health care providers who care for Medicare and Medicaid patients protect the patients’ health and safety.” Biden v. Missouri, Case No. 21A240 (Jan. 13, 2022); Becerra v. Louisiana, Case No. 21A241 (Jan. 13, 2022), 2.  The types of providers to which this oversight function applies include twenty-one industry segments such as hospitals, nursing homes, ambulatory surgery centers, hospices, rehab facilities, community mental health centers, and FQHCs.

In considering the IFR, the Court majority held that the “health and safety” language in various authorizing statutes broadly applied to Medicare and Medicaid providers, even if such language was not in all relevant, applicable statutes.  The majority also determined that the HHS Secretary “routinely imposes [COPs] that relate to the qualifications and duties of healthcare workers themselves.”  Id. at 6.

By finding that CMS acted within its authority to issue the IFR, the Court stayed the preliminary injunctions in the two lawsuits pending resolution of the underlying lawsuits, both of which are currently on appeal to the Fifth and Eight Circuits.

So for now, any healthcare facility provider that accepts Medicare and Medicaid must comply with the CMS requirement that their healthcare workers receive the COVID vaccine.


Winstead Shareholder Taylor White discusses U.S. Supreme Court Blocks OSHA’s Vaccine-Related Emergency Temporary Standard. View Here.


Disclaimer: Content contained within this article provides information on general legal issues and is not intended to provide advice on any specific legal matter or factual situation. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel.

Winstead Shareholders Katy Carmical, Corinne Smith and Kevin Wood recently discussed Medical Timeshares in a new American Health Law Association article.

The article can be read here: Medical Timeshares Require More Than What You Learned in Kindergarten

Featuring Epiphany Dermatology, WellMed Medical Management, & Allied OMS

In September, Winstead hosted a virtual event entitled “Physician Roll-Up Transactions.” The event, which was moderated by Winstead shareholder Justin Hoover, featured Torie Berkowitz, Corporate Counsel & Director of Legal Affairs at Epiphany Dermatology, Joanne Comer, Sr. VP, Corporate Development at WellMed Medical Management, and Daniel Hosler, CEO and Co-Founder of Allied OMS. During the event, the speakers explored some of the different strategies, trends, and challenges surrounding physician roll-up transactions, as well as the world of Physician Practice Management. Here are some of the key takeaways from the event:

  1. In the broader business world, companies are fundamentally valued based on their cash flow. Accordingly, an important step in physician roll-up transactions includes closely examining the practice’s cash flow and getting a glimpse of how the practice’s financials look after year-end distributions to the owners of the practice.
  2. In the private equity buyer market, when doctors partner with many of these firms, they often take a pay cut post-closing, with that pay cut generally corresponding to additional cash payments received at closing. Also, private equity firms generally want to see an alignment of interests, so they may buy up to 90 percent of a practice but still expect physicians to reinvest alongside them.
  3. Another key trend relates to changing views regarding the private practice of medicine between new doctors and more seasoned doctors. With the increasing costs of higher education, more and more people are reliant on student loans. As a result, there is a change in mindset with newer doctors. Some of them are not sure they want to be the owner of a practice. This shift is instilling fear in some older doctors as they are not sure whether they will be able to find a buyer or a similar market (as when they entered the field) when they are ready to sell their practice.
  4. Preparation is very important in these transactions—and to help with this process, physicians should practice patience and seek the input of third-party advisors. This is especially important because this process is new to them and often involves procedures and measures they are not familiar with. As such, preparing for a transaction in advance, including seeking out the help of trained advisors, can help to make the process much smoother and less stressful.
  5. Finally, physicians can help prepare for a transaction by getting started on document compilation and other preparatory due diligence early on. This is important as physicians must still manages their practice while at the same time trying to execute on a transaction.

Contact

Justin Hoover | 817-420-8225| jhoover@winstead.com 

Healthcare data breaches occur on a daily basis in the US. Most healthcare providers expect it is a matter of “when” not “if” they will be impacted. The US Department of Health and Human Services reported 325 healthcare data breaches in in the first six months of 2021.  As the threat of being hacked increases, more health care providers are purchasing cyber liability insurance to protect against data breaches or online attack.

The timing could not be worse. With cyberattacks on the rise, and demand for coverage surging, the $3 billion cyber insurance industry is facing higher costs and substantially more risk than ever before. According to the National Association of Insurance Commissioners, premiums have more than doubled since 2015. Some companies report their policy premiums increasing 35% over prior year.  Almost all premiums climbed by double digits in 2020.

As a result of soaring losses, insurers are doing more due diligence on customer’s applying for coverage, raising prices, and limiting the liability coverage. Upper limits of $10M are really a thing of the past and policy holders are receiving notices that the coverage is being slashed to $5M or even less if the policy holder cannot demonstrate their compliance with data privacy standards and best practices.

Due to the uptick in ransomware losses, the underwriting process now often requires the applicant to provide written documentation of security audits, submission of incident security plans, disaster recovery plans, and compliance with industry standards like SOC or HITRUST. Some companies will find that they are unable to obtain cyber coverage at all.

Continue Reading Impact of Ransomware Attacks on the Cyber Liability Insurance Market

Webinar: Physician Roll-Up Transactions
Join Winstead for a webinar on physician roll-up transactions. During the webinar, guest speakers will discuss various strategies and structures for successfully effecting roll-up transactions, including how physician groups should prepare in advance of exploring a potential transaction in order to maximize their value. The panel will also discuss current trends, developments, opportunities and challenges related to physician roll-up transactions and the Physician Practice Management space.

Date: Wednesday, September 8, 2021
Time: 12:00 p.m. Central Time

Moderator:
Justin Hoover, Shareholder, Winstead

Speakers:
Torie Berkowitz, Corporate Counsel & Director of Legal Affairs, Epiphany Dermatology
Joanne Comer, Sr. VP, Corporate Development, WellMed Medical Management
Daniel Hosler, CEO and Co-Founder, Allied OMS

Register Here