What to do BEFORE considering a private equity transaction

by Marc S. Beckman, J.D.

We have numerous clients who have completed private equity transactions and many more that are considering them. The allure of senior physicians monetizing a practice value together with the promise of fewer administrative headaches can be too great to ignore. Private equity transaction costs are particularly high and many physician practices are not prepared for some of the pitfalls and other surprises that await them. Some relatively simple advanced planning can save a practice a substantial amount in transactions costs, including attorney, accountant and other consultant fees. 

Private equity transactions for physician practices come in many forms. The most common structure involves the sale of the practice’s non-clinical assets to a buyer management services organization (MSO) and the sale of clinical assets to a new buyer professional entity (or the restructure of the existing professional entity) (collectively, the “Buyer”) in exchange for purchase price cash and rollover MSO equity. 

Compliance Audit

Far and away, the most important planning if a practice thinks it might consider such a transaction is to conduct a comprehensive compliance and billing audit. This should be done far in advance of any serious private equity transaction. Allow your counsel to manage this process in order to best preserve attorney-client privilege. The private equity backed Buyer is going to conduct extremely thorough due diligence. This process will involve much more than merely reviewing billing and coding history. This is especially true if the practice maintains ancillary revenue streams that might otherwise make it more attractive for private equity, such as imaging services such as ultrasound, MRI, PET, CT, clinical laboratory and/ or pathology services, radiation oncology, real estate, ASC and/or billing services. 

Among other issues, the due diligence process will undertake a critical review of the practice’s compliance with the highly technical and often misunderstood elements of the federal and state physician self-referral prohibitions (i.e. “Stark Law”). Accordingly, the practice’s historic manner and method of allocating revenue and expenses will be under the microscope (i.e. its compensation plan), including, for example, whether the practice is fully satisfying the myriad of elements involved in the Stark Law group practice and in-office ancillary services exception. Too many practices that do not undergo this self review presume they are in compliance but find that they are not when they are far into the expense of the transaction. Another common example is a heightened review of all real estate leases, particularly parttime and/or block leases with referral sources. Over time, some may have lapsed without executed renewals or the rents have fallen out of fair market value. Same issue applies for independent contractor relationships. 

Another common trap for the unwary involves excluded personnel. All medical practices participating with Medicare and Medicaid must ensure that no excluded persons are employed or contracted by their practice (whether as a billing provider or administrative staff person) and regular review of the excluded provider lists must be conducted to avoid utilizing such an individual, even if such person misrepresents themselves. While many practices have a vague familiarity with these issues, most do not engage in critical self-examination to ensure compliance. 

Why is this attorney guided advance review so important? Because the private equity Buyer will typically require the Seller practice to address these issues in the most conservative manner possible. That would include full self-disclosure and repayment of offers to pay penalties. In addition, it may also require significant escrows out of purchase price proceeds to secure future potential payments and indemnification obligations to the Buyer. Further, the advance review provides an opportunity for the practice to control the result based on its own risk tolerance and without being dictated by the Seller. We are aware of numerous instances when highly technical but financially insignificant compliance error resulted in literally millions of dollars of potential repayment and escrowed dollars significantly reducing the benefit of a private equity transaction.

Document/Contract Review
Regardless of whether a practice follows the above suggestion for an audit, a second significant cost-saving measure is for the practice to thoroughly prepare its paperwork in advance of the transaction. A substantial and often unnecessary cost of a private equity transaction is organizing and chasing down so much of the paperwork necessary for the Buyer and its counsel. Among the items most commonly requested is the evidence of admissions of all current practice owners and redemption of prior owners. Third-party payer agreements and vendor contracts are also notoriously hard to track down. Many will need to be terminated or assigned as part of the private equity transaction and therefore it is helpful to know the underlying terms of these documents. Longer term vendor or service contracts that may not be easy to terminate. Similarly, any liens or open lines of credit will need to be addressed. Even a zero balance line of credit needs to be closed so a lien termination can be filed, and this filing may take much longer than it should and hold up the transaction.

Employee census information should be maintained and kept up to date. The practice needs to ensure all contracts with employees and independent contractors are fully executed and maintained. Malpractice policies may need to be terminated, reporting endorsement (i.e. “tail”) may need to be priced and purchased including for the practice entity. If known in advance, some of these transaction costs can be more easily negotiated with the Buyer. There may also be planning opportunities for the practice as it will be terminating its defined benefit and defined contribution retirement plans. 

Another issue often overlooked until late into the process is patient and payer credit balances. This is money that the practice must account for to be refunded or turned over to the state register for unclaimed consumer credit balances. This can be an unpleasant surprise for practices that have allowed these balances to accumulate over a long period of time. A regular and routine process for reducing these balances can save a practice significant headaches and potential cash flow issues during the transaction process. 

Finally, before seriously entertaining a private equity transaction, physician practices are encouraged to have their corporate accountants collaborate in advance with their legal counsel. There are numerous potential tax implications to the transaction as well as the structure of the practice post-transaction that should be understood. Understandably, accountants are frequently concerned about the tax structure of the transactions promoted by the private equity backed Buyer, and will want the opportunity to weigh in before it’s too late.

Some advanced planning and consulting can go a long way toward saving a physician practice significant transaction expenses later. 

Marc Beckman is a member at CCB Law, a boutique law firm focused on providing counsel to physicians and healthcare professionals. He can be reached at 315-477-6244
or mbeckman@ccblaw.com.

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