at the center can be construed as requiring additional referrals in
order to maintain a flow of remuneration. This creates what we call
in the law business a "bad fact."
Many operating agreements governing the rules relating to ASC
ownership can create legal compliance risk. It's critical to establish
procedures for excluding providers in advance. The procedures
should include an analysis of the risk of violating the AKS rather than
reliance on the safe harbors. Exclusion standards must be uniformly
followed and can't raise any inference that additional referrals are
required to maintain an investment interest. It's easy to turn efforts to
bring investors closer to compliance with safe harbor standards
"inside out" by characterizing them as a demand for additional refer-
rals.
Investors who perform more surgeries or higher-value procedures
might feel the lagging investors are taking a ride on their efforts.
But once investors own interests in an ASC, it's very difficult to
force redemption without creating significant legal risk. Unless,
that is, you've created the appropriate process in advance.
OSM
Mr. Fisher (jfisher@ruderware.com) is a healthcare attorney at Ruder Ware
in Wausau, Wis.
Legal Update
LU
3 0 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • A P R I L 2 0 1 7
Once investors own interests in an ambulatory surgery center,
it's very difficult to force redemption without
creating significant legal risk.