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LEGAL UPDATE
neither your ASC nor any existing owner should loan
funds to the physician
SERVING UP SHARES
A physician's
buy-in price must be
consistent with fair
market value.
for his buy-in.
Failure to comply
with these rules could
potentially raise
kickback concerns.
The purchase agreement might also include
an accurate assessment of the main economic risk factors your ASC
faces, which lets the potential buyer make a fully informed decision.
For example, changes in the center's relationship with a significant
payor might impact future reimbursement. This disclosure will help to
insulate your ASC against liability claims from the buyer in the event
the facility doesn't perform as well as the buyer expected. If you're selling equity to multiple physicians, a more detailed confidential information memorandum might accompany the purchase agreement.
The governing document sets forth owners' ongoing rights and
responsibilities. It addresses how decisions affecting your ASC are to be
made, establishes restrictions on owners' abilities to sell their equities
and identifies situations in which they may be repurchased by your
ASC, such as death, disability or failure to satisfy the Anti-Kickback
Statute's "one-third" tests. The governing document might be called an
operating agreement in a limited liability company, a shareholder's
J A N U A R Y 2013 | O U T PAT I E N T S U R G E R Y M A G A Z I N E O N L I N E
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