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Clinical Co-Management Agreements: Limited Legal Collaboration at Last?

Published in Health Law and Compliance Update

Finding a legal way to promote and encourage collaboration between a hospital and its medical staff has been an elusive goal for many years. In theory, a hospital and its medical staff constitute one health care delivery system with the principal goal of delivery of efficient, high-quality care to its patients. However, usually the hospital and the physician members of its medical staff are or work for separate legal entities. Therefore, many legal obstacles, some specific to health care, and others part of the general legal restrictions applicable to business operations, have combined to make such collaborations difficult. Examples of health-law specific constraints include the Civil Monetary Penalties Law, as amended (CMP Act), the Medicare and Medicaid Patient Protection Act of 1987, as amended (Anti-Kickback Act and, together with the applicable regulations the Anti-Kickback Law) and Section 1877 of the Social Security Act, as amended (Stark Act and, together with the applicable regulations, the Stark Law).  General legal constraints include the laws pertaining to antitrust, tax exemption, and public contracting. While not every legal impediment is implicated in any one particular collaborative proposal, all such restraints must be considered when examining a proposed course of collaborative action, as any of them can create obstacles to successful implementation of collaborative arrangements.

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