Behavioral Health
Representation of Behavioral Healthcare Providers
With the increases in reimbursement opportunities for mental health services and the continued impact of the opioid crisis being felt widely across the country, the need for behavioral health providers continues to expand. We represent operators, developers and investors in all aspects of bringing behavioral health facilities and their programs to fruition. Such representation includes acquisitions, dispositions and regulatory considerations including formation, licensure, accreditation, Certificate of Need (where required), administration, reimbursement, confidentiality concerns, surveys, enforcement actions and investigations.
Licensure, Accreditation and Credentialing Issues
Benesch Healthcare+ represents healthcare providers in licensure, accreditation and credentialing issues, including in providing pre- and post- acquisition advice, as well as strategic advice involving threatened terminations, suspensions and modifications. With regard to behavioral health matters, we represent the entire gamut of providers, including inpatient psychiatric hospitals, partial hospitalization programs, outpatient treatment and day programs, and have extensive experience in connection with mental health boards, agencies and payor sources. We often handle licensure and certification issues for behavioral health providers, including appeals of TJC and CMS adverse determination in connection with certifications.
ABA Therapy
Regulatory and Transaction Experience
Attorneys in Benesch’s Healthcare+ Practice Group are adept at working seamlessly with owners and operators in the development and implementation of compliant structures for ABA Therapy businesses. This includes understanding whether any corporate practice of therapy prohibitions exist and collaborating with clients to find a workable and legally compliant structure for setting up the business. In connection with our structuring work, we provide further advice and counsel on how to manage and staff the ABA Therapy operations, balancing the business imperatives with the legal and regulatory risks. We also work with our clients on acquisitions and dispositions that are complimentary with their growth or exit strategies. Such transactions involve both strategic and investor-led buyers and sellers. As transaction counsel, we coordinate with various subject matter experts at Benesch, including, without limitation, our Corporate, Tax, Labor & Employment, Employee Benefits, Intellectual Property, and Real Estate Practice Groups to address matters in diligence and deal structure. We are adept at identifying challenges in due diligence, evaluating the risks, and constructing pragmatic responses and plans to keep deals on track. We pride ourselves in finding workable solutions in the extraordinarily complex and dynamic regulated healthcare environment. We are deal makers, not deal killers.
Billing and Reimbursement
Our attorneys counsel ABA providers with respect to billing, including payor contracting, ensuring proper reimbursement for services from private insurance companies, Medicaid, Medicare and other payers, which often involves complex billing codes and payor reimbursement policies. We also handle payor disputes, including appeals of CMS billing and coding audits.
Ancillary Join Ventures
We regularly counsel clients in this space in their joint ventures with ancillary businesses. Our counsel includes formation, acquisition and disposition, expansion, and compliance issues, as well as review and negotiation of all definitive joint venture agreements, including interest purchase agreements, operating agreements, management agreements, transition services agreements, and assignment and assumption agreements.
Intellectual Property
Benesch Healthcare+ attorneys work with practitioners in our Intellectual Property Practice Group to protect intellectual property rights related to ABA treatment protocols, training materials, software tools, and other proprietary assets developed, used or licensed by the organization.
Ethical and Professional Standards
We advise clients in connection with upholding ethical standards and professional conduct in accordance with the Behavior Analyst Certification Board (BACB) guidelines, state licensing regulations, and other industry standards.
Privacy and Data Security
Our counsel includes advice on matters related to HIPAA, and we coordinate with our extensive data privacy & cybersecurity team when matters arise requiring their expertise. We regularly advise ABA providers on compliance and preventative measures. In the event of a data breach, we advise clients on incident response, crisis management, and breach mitigation.
Employment Law
We work with our clients in the preparation of employment agreements, independent contractor agreements, and other staffing agreements and arrangements. As needed, we work with our attorneys from our Labor & Employment Group to develop workplace policies, handle discrimination and harassment claims, ensure wage and hour compliance, and represent ABA providers in litigation or dispute resolution. Given recent developments in the enforceability of restrictive covenants, including
non-competition and non-solicitation provisions, we routinely advise our clients on the deployment of such restrictions, enforceability of the same, and other options to protect trade secrets and proprietary information in jurisdictions with strict prohibitions on the use of such provisions.
Navigating these legal issues requires careful attention to detail, ongoing monitoring of regulatory changes, and collaboration with legal advisors who understand the unique challenges faced by ABA providers.
