in competition from joint negotiations with employers, and that estab-
lishing a new legal entity will not insulate providers from price-fixing
claims. On the other hand, connecting clinical and financial integration
efforts with direct contracting can, under some circumstances, permit
competitors to negotiate jointly. As always, steer clear of anti-kickback
violations. Research whether your direct contracting program's relation-
ships could be seen as influencing the referrals of Medicare and other
federal payer beneficiaries, and whether your state's laws can impact the
way your providers work together.
How will your program fit with the benefit plan designs of prospective employer partners?
Packaging your services in a way that is attractive to the employ-
ers you're targeting often requires some understanding of benefit plan
design and the federal Employee Retirement Income Security Act
(ERISA) law. In recent years, many employers have been adopting ben-
efit plans that involve high deductibles and health savings accounts. In
this context, direct contracts should be structured to avoid appearing
as though they're creating a standalone benefit (which would raise
compliance issues with respect to the Affordable Care Act's market
reform requirements) or "first dollar" benefits, which could destroy
health savings account eligibility.
How will you address professional liability?
Collaborations among providers, such as those seen in the deliv-
ery of bundled care, should be accompanied by clear contractual
requirements that each provider maintain appropriate levels of profes-
sional liability insurance. Indemnification agreements, which limit the
responsibility of each participant for their own acts and omissions,
can reassure employers who harbor concerns that they'll be blamed
for steering employees to a provider in the event of a malpractice
4
5
Legal Update
LU
1 4 8 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • M A R C H 2 0 1 6
