Compliance Audits in Mergers and Acquisitions
Compliance Audits in Mergers and Acquisitions
There is a current trend in the health care industry toward mergers and acquisitions. As providers consolidate acquisition issues, such as due diligence, become major issues. Transitional attorneys are well versed in the routine of transactional due diligence. Health care and compliance attorneys are often asked to become involved in defining the appropriate scope of health care compliance due diligence in the context of a merger and acquisition transaction.
The structure of the contemplated transaction has a major impact on the scope of due diligence that should be performed regarding health care compliance areas. Where the Medicare provider number of the acquired organization is part of the deal, robust audits of billing and compliance practices is necessary to identify any potential false billing or overpayment claims. In this type of transaction, the acquiring provider will certainly have successor liability for all matters that took place (or did not take place) with respect to the provider number prior to closing.
Even when the provider number is not acquired, the transaction needs to be structured in a way that minimizes exposure to successor liability under state law. Even when structured in a manner that insulates a provider from past liabilities, as a practical matter, the past methods of doing things will be carried on the acquiring entity following the acquisition. Billing practices will carry forward for some period of time. Referral relationships may exist without a written agreement being in place as required under state law exceptions or safe harbor rules. It will take some period of time to identify specific problems that might be carried forward into the new organization, even under the most robust compliance program.
In any event, the compliance perspective should be involved to provide insight as part of every health care acquisition. The scope of compliance needs to be appropriately scaled to reduce potential risk exposure to the acquiring organizations.
For more information regarding health care mergers and acquisitions, contact John Fisher, II at Ruder Ware.
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Tags: Complliance Role, due diligence, Mergers and Acquisitions, Successor Liability