Stephen Nash

Stephen P. Nash

Partner

Stephen Nash is the co-leader of our Healthcare Practice Group. He has represented healthcare organizations for more than 30 years. His clients include academic medical centers, hospitals and health systems, health information exchanges, medical groups and other physician organizations, health plans and other managed care organizations, long term care organizations, ancillary health service providers, healthcare investors, state agencies and sovereign powers.

Stephen counsels these organizations regarding governance, corporate, reimbursement, tax, privacy and security, fraud and abuse, and other regulatory compliance issues. These issues typically arise within the context of mergers, acquisitions, joint ventures, corporate reorganizations, complex contractual arrangements and other affiliations and collaborative efforts, as well as in connection with tax-exempt revenue and refunding bond issues.

Recently, Stephen has had the privilege of counseling various domestic and foreign government agencies on such diverse matters as supplemental payment protocols, the design of primary healthcare systems, privacy and security issues, and regulatory requirements for health insurance.

In addition to his transactional and regulatory work, Stephen has more than 20 years of experience representing hospitals in single provider and group appeals for Medicare and Medicaid reimbursement, and serves as a strategic adviser on Medicare, Medicaid and private payer matters such as coverage issues and payment methods.

Stephen also has substantial experience representing health information exchanges, including CORHIO, Colorado’s statewide health information exchange, which he has advised, since its inception, regarding planning, organization, governance, tax-exemption, financing, contracting, and privacy and security matters. Stephen also represents CIVHC, the administrator of Colorado’s state-wide all-payer claims database, or APCD. 

Stephen speaks and publishes regularly on topics related to healthcare law, health information exchanges, corporate governance, clinical integration, collaborative healthcare ventures and the legal trends influencing the US and foreign healthcare systems.

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Organization, Reorganization, Acquisition, Affiliation and Exit

  • Represented more than 30 hospitals and other tax-exempt entities in corporate reorganizations designed to minimize inappropriate regulation and focus operations.
  • Worked with Boards of Trustees and Executive Management to design and execute transactions, including compliance with applicable federal and state tax, health planning and other regulations.
    • By analogy, designed reorganization plans for other exempt organizations including a major state-related university, independent living associations and community health clinics.
    • Designed and executed plan of reorganization for university related land bank, to permit its sponsorship of a number of hospital shared service organizations.
  • Represented clients in multiple M&A transactions – both buy-side and sell-side.
    • Represented nonprofit and for-profit consolidators of hospitals in both asset acquisitions and entity acquisitions.
    • Represented private equity groups in consolidation of healthcare service providers in both asset acquisitions and entity acquisitions.
      • Represented non-profit organizations in sale of assets.
      • Represented seller of psychiatric hospital.
    • Represented nonprofit organizations in transfer of membership interests (control) in hospitals.
      • Transfer of membership interests for US$311 million.
    • Represented multiple hospitals in sale of hospital-sponsored health insurance company.
      • Transfer of membership interests and interests in "surplus notes" for US$45 million.
      • Preservation of operational autonomy for company sold.
      • Represented founders in establishment of two specialty hospitals.
  • Represented founders of new hospitals.
    • Representing International Sovereign Fund in joint venture with International  Healthcare System to develop hospitals in the Middle East.
    • Represented founder of two new women's hospitals – planning, finance and execution.
    • Represented founder of new general med-surge hospital – planning, finance and execution.
    • Represented founder of orthopedic specialty hospital – planning, finance and execution.
  • Represented consolidators of physician practices and home health services.
    • Represented a national consolidator of nephrology practices from initial organization through sale to public company.
    • Represented multiple practices in negotiation of their participation with venture-backed consolidators.
  • Represented Joint Venture between Canadian owner of Senior Living Facilities and Australian Investor in the acquisition of five Colorado senior living facilities for US$232 million.
  • Represented complex multi-institutional joint ventures from design through execution.
    • Represented joint venture of 11 hospitals and two universities for organization, financing of the construction and equipment of a four-unit MRI facility.
    • Represented multiple hospitals in the formation and financing of a number of hospital cooperative service organizations, including shared laboratories, shared imaging facilities, shared radiation therapy center, shared communications facilities and shared center for emergency air transport.
    • Represented joint venture between nonprofit hospital system and for-profit hospital system.
    • Represented joint operating arrangement between nonprofit hospital systems.
    • Represented Super-PHO as special counsel in formative stages, and negotiations of "percentage of premium" and other risk-assuming agreements with commercial health insurance companies, and generally when it decided to unwind and undo a number of risk-assuming contracts it had inherited – successful exit from asserted liabilities in excess of US$20 million.
  • Represented multi-stakeholder coalition in organization of statewide health information exchange.
  • Represented physician organizations and affiliated entities, including independent practice associations, group practices without walls, integrated medical groups, group practice-related management service organizations and tax-exempt faculty practice plans, including formation and combinations.
    • Represented a 250 MD IPA from formation of provider network through ongoing operations, including obtaining favorable FTC advice, and negotiating risk-assuming and non-risk assuming contracts with commercial health insurance companies.
    • Represented a 400 MD IPA in reorganization and negotiation of risk assuming contracts.
  • Represented hospital-physician integrated delivery systems, including physician-hospital organizations, and management services organizations.
    • Represented numerous hospital/physician organizations from formation through operations, including private placement compliance, negotiation of managed care contracts and formation of ancillary service joint ventures (pre-Stark/F&A).
  • Represented community health clinics in corporate reorganizations and affiliations.
    • Represented nonprofit NewCo in formation, acquisition of tax-exempt status, new governmental program participations and FQHC status, new licenses, and subsequent acquisition of multiple existing FQHCs, with Section 330 continuation grant.
    • Represented existing community health clinic in corporate reorganization, affiliation and qualification for FQHC status and new Section 330 grant.
  • Served as special health law counsel to unsecured creditors’ committee in hospital Chapter 11 proceedings.

International Projects

Infrastructure Development

  • Represented International Sovereign Fund in joint venture with International Healthcare System to develop hospitals in the Middle East.
  • Represented private party in first hospital PPP project in Eastern European nation.
  • Represented Sovereign sponsored agency in reorganization of national primary healthcare system.
  • Represented Sovereign sponsored agency, and national governing council, in development of regulatory infrastructure for new national healthcare insurance program.
  • Represented Sovereign sponsored agency in RFP process and subsequent contracting for national cancer screening initiative. 

Tax-Exempt and Corporate Finance

  • ŸTax-exempt – primarily served as counsel to more than 30 borrowers in a variety of bond issues, including revenue and refunding, fixed and variable rate, with and without credit enhancement, immediate defeasance and deferred with cross-over, blind pools and dedicated pools.
    • Represented state-wide hospital consortium in a dedicated, variable rate pool.
    • Represented a university hospital consortium in a fixed-rate revenue issue secured by member guarantees.
    • Represented a university hospital consortium in a tax-exempt bond issue secured with "take or pay agreements" issued by the consortium's member hospitals.
    • Secured necessary state and authority approvals for church to borrow at tax-exempt rates (IDBs) for addition of "non-worship" space.
    • Taxable – counsel to borrowers for senior and junior credit facilities.

Tax Matters

  • ŸProvided tax advice on issues such as qualification for tax-exempt status, avoidance of private inurement and private benefit, application of the tax on unrelated business income and restructuring to avoid the impact of such taxes, obtaining IRS private letter rulings, and the proper structuring of capital-raising transactions to meet the requirements of the provider's tax exempt status. Worked closely with the EO Division of the national office of the IRS.
    • Obtained in excess of 50 private letter rulings from the IRS regarding the establishment of new exempt organizations, corporate reorganizations into multi-corporate systems, and novel issues regarding non-private foundation status and UBI issues.
    • Advised on the conversion of tax-exempt organizations to proprietary corporations, and the implications of such transactions under state charitable trust and federal tax law.
    • Served as founding chair of the ABA Tax-Exempt Organization Section's Committee on Healthcare Organizations.
    • Served as Vice Chair of the AHLA Tax and Finance Practice Group.
  • Provided tax advice on matters affected by requirements for exemption from state property tax.
    • Obtained numerous exemption determinations.
    • Successfully defended efforts to revoke exemption of multi-use facilities.
    • Established exemptions for properties owned and used by multi-hospital joint ventures.

Medicare/Medicaid/Private Payer Issues

  • Advised public, private and nonprofit companies operating within the healthcare sector concerning compliance with (or challenges to) the administrative requirements of Federal and state regulatory agencies, with particular emphasis on the Medicare and Medicaid Programs, HIPAA, and related HIT issues.
  • Advising sovereign power regarding regulatory infrastructure for first national Social Health Insurance System.
  • Advising sovereign power regarding the redesign and outsourcing of management of national primary healthcare system.
  • Represented providers in the initial and continuing aspects of relationships with commercial third-party payers, including initial negotiation and ongoing review of proposed managed care contracts and payment systems for both inpatient and professional services, and representation regarding payment issues that arise from such agreements.
  • Represented numerous hospitals in presenting reimbursement claims to the PRRB, and where necessary, in the federal courts (see Litigation).
  • Represented numerous hospitals, integrated delivery systems and physician organizations in the negotiation of "risk-based" contracts.
  • Represented Super-PHOs, hospital-sponsored HMOs and “risk-assuming” PPOs.
  • Represented a large integrated delivery system in the process of unwinding its affairs and resolving disputes regarding asserted claims for risk pool deficits in excess of US$20 million.
  • Represented providers in their dealings with governmental payers and related fiscal intermediaries, agents and carriers.

Antitrust

  • Counseled state-wide health information exchange and state-wide all payor claims database on application of antitrust laws to operations, as well as to collection and dissemination of certain types of clinical and claims-based information.
  • Obtained business advice from the FTC regarding compliance with various of the antitrust "safety zones."
  • Structured price negotiation policies and procedures for partially integrated delivery systems, physician-hospital organizations and partially integrated physician organizations, in order to comply with DOJ and FTC enforcement guidelines.
    • Obtained a novel ruling from the FTC approving a new "at-risk" model for use by a 250-physician IPA, including the first “community benefit” forfeiture provision.
    • Obtained favorable ruling from the FTC approving "at risk" contracting for a single specialty physician IPA with more than 30% market share.
  • Advised health plan on participation in multi-plan collaboration to incentivize the use of generic pharmaceuticals.

Fraud and Abuse/Stark/False Claims

  • Represented County and Board of Commissioners in successful resolution of false claims investigation into local hospital’s “contributions” as regards IGTs and related Medicaid DSH payments.
  • Conducted fraud and abuse/Stark audits for integrated delivery systems and prepared ongoing compliance.
  • Represented hospitals, ancillary service providers and physicians under investigation for filing “false claims” under the Medicare and Medicaid programs.
    • Represented former owners of Dental PPM in response to civil investigations by OIG and State.
    • Represented hospital in successful settlement (<US$250,000) of threatened claims by OIG and state.
    • Represented DME company in unwinding, without penalty, 11 hospital JVs.
  • Represented specialist in settlement (<US$50,000) of threatened claim by OIG to prosecute systematic up-coding.

HIPAA and Health Information Technology

  • Represents multi-stakeholder coalition in conception, organization, governance, tax exemption, financing, and ongoing operation of state-wide health information exchange.
  • Represents state empowered, state-wide all payer claims database.
  • Developed policies and procedures for compliance with HIPAA Privacy and Security Rules, as expanded by HITECH Act, as well as for federal and state breach disclosure requirements and Red Flag Rules.
  • Represented numerous health care institutions, ancillary service providers and vendors, and sports organizations with respect to compliance issues raised by HIPAA, HITECH Act, state privacy laws and state breach disclosure laws.

Licensure, Certificate of Need and Health Planning

  • Provided assistance in evaluating, planning and structuring transactions either to comply with, or to properly avoid, certificate of need review. By way of example:
    • Represented developer in prosecution of more than 150 CON applications when state health department lifted moratorium on SNFs.
    • Represented multi-hospital joint venture of emergency air transport service when state health department threatened to shut them down.
    • Represented hospital in contested issuance of renewal license.
    • Represented new hospitals, LTC facilities, community clinics, radiation therapy centers, ambulatory surgery centers and other providers in obtaining initial facility licenses, as well as Medicare and Medicaid enrollment.

Credentialing and Peer Review

  • ŸAdvised clients regarding the preparation of hospital medical staff bylaws, fair hearing procedures, credentialing disputes, issues relating to allied health professionals, procedures for emergency suspensions, and other disciplinary matters.
    • Wrote and serviced first program sponsored by a state medical society to provide independent legal counsel to medical staffs.
    • Represented a group of heart surgeons whose surgical privileges had been revoked without process.

Health Insurance, PPO and HMO Regulation

  • ŸRepresented risk-bearing providers in obtaining licensure and complying with applicable federal and state law and regulations.
    • Advised Super-PHO regarding need to obtain HMO license prior to entering executory contracts for provider network.
    • Obtained approval from state health/insurance departments for IPAs to enter risk assuming managed care arrangements.
    • Advised hospital sponsored PPO in requirements for state DOI approval as “risk-assuming” PPO.
  • Structured integrated delivery systems and developed health plan-provider and provider network contractual relationships in order to minimize regulatory burdens.
  • Advised national health plan regarding licensure requirements for sub-capitated “carve-out” services model in multiple states.
  • Advised national health plan on legality of use of percentage co-insurance as component of plan design.
  • Advised national health plan on payer/provider contract negotiations.
  • Advised national Medicare Advantage Plan on service area expansions.
  • Advised national specialty and mail order pharmacy on licensure and related state law issues for expansion to several east coast states.
  • Advised on design, documentation and implementation of state-wide Workers’ Compensation PPO.
  • Advised on state regulatory compliance concerning multi-state consolidation of provider-sponsored Workers' Compensation management and claims processing services.
  • Advised on state regulatory compliance concerning multi-state rollout of Med-Spa franchise arrangement.

Securities

  • Represented entrepreneurs in complying with state and federal requirements for exempt offerings, including preparation of PPMs and other disclosure materials, Reg. D filings and state registration or exemption as appropriate.

Contracting

  • Represented hundreds of parties in dual and multi-party contracting – negotiations and documentation – including, by way of example, the following:
    • Sovereign power regarding agreement to outsource management of national primary healthcare system.
    • State agency (Medicaid) regarding contracting with third party for data hosting and management services.
    • Hospital and other provider agreements with Physicians, including employment, exclusive and non-exclusive services, practice management, clinical research and medical director services.
    • Reimbursement and other third party payment agreements.
    • Ancillary service agreements.
      • Joint venture agreements.
      • Managed care agreements.
      • Loan agreements.
      • Management services agreements.
      • Fundraising agreements.
      • Syndication agreements.
      • Settlement agreements.
  • Represented statewide health information exchange in negotiation and documentation of master data sharing agreements and HIE vendor agreements.

Administrative and Appellate Proceedings

Medicare, Medicaid and Commercial Insurance Claims

  • Represented clients before the Provider Reimbursement Review Board (PRRB) and in subsequent appeals to the federal courts in the 3rd, 4th and DC Circuits.
  • Prosecuting multiple Group Appeals to invalidate the Medicare Outlier Program regulations from 1998 through 2011 and to recover approximately US$1 billion of underpayments on behalf of client hospitals. 
  • Prosecuted multiple Group Appeals to recover approximately US$33 million of Medicare RFBN Adjustment underpayments due to more than 10 years of compound errors by CMS.
  • Prosecuting multiple Group Appeals challenging the validity of 2008 CMS Regulations limiting access to administrative and judicial review of Medicare underpayment appeals.
    • Obtained multiple injunctions from DC District Court directing HHS, the PRRB and CMS’s MACs not to enforce the Secretary’s “self-disallowance” regulation as applied to Medicare reimbursement appeals in the absence of a timely NPR.
    • Currently challenging the validity of the Secretary’s “self-disallowance” regulation as applied to Medicare reimbursement appeals from a timely NPR.
  • Successfully litigated challenge to the validity of CMS Medicare interest regulation (DDC); case remanded to PRRB for rehearing consistent with court’s ruling; more than US$9 million of interest at stake.
  • Successfully challenged multiple theories by which the PRRB has dismissed cases asserting lack of “jurisdiction.”
  • Negotiated a favorable settlement in dispute between client Super PHO and a group of payors (including Highmark Blue Cross, Aetna and Prudential) in effort by payors to recoup more than US$30 million from client and more than 1,000 contracted physicians. Advised in design of new model for MediCal DSH program, resulting in client (previously excluded) now qualifying for more than US$10 million in annual DSH payments.
  • Obtained a PRRB ruling, which the CMS Administrator declined to modify, awarding in excess of US$18 million of additional GME reimbursement to our hospital client.
  • Obtained a federal appeals court ruling, in which the CMS Administrator acquiesced, overturning a Medicare DSH regulation, and obtaining US$12 million for our group of hospital clients.
  • Prosecuting multiple group appeals to recover ongoing Medicare DSH underpayments involving SSI, etc.
  • Obtained federal district court rulings (two) reversing the CMS Administrator and directing the PRRB to reinstate a capital redetermination request on the basis of “equitable tolling” of the regulatory deadline.
  • Successfully defended challenge to hospital’s SCH status.
  • Obtained EACH/PRCH status for client hospitals.
  • Prosecuted Medicare/Medicaid reimbursement claims returning, in the aggregate, in excess of US$100 million to hospital and SNF clients under cost-based and TEFRA Ceiling reimbursement programs.
Credentialing Disputes
  • Served as hearing officer or advocate in credentialing and peer review proceedings.
  • Represented two heart surgeons in an “economic credentialing” claim settled after favorable jury verdict for more than US$2 million.

Medical Malpractice

  • Established self-insurance trusts for healthcare systems wishing to assume medical malpractice and/or workers' compensation risk.
  • Advised a group of rural hospitals regarding risk-pooling options, including formation of captive insurance company or risk retention group.

Agency Practice

  • Obtained advisory opinions and private letter rulings from federal agencies, including the Federal Trade Commission, the Centers for Medicare and Medicaid Services, and the Internal Revenue Service, approving proposed transactions.
  • Advised on state licensure requirements for healthcare organizations, physicians and other healthcare professionals.
  • Advised managed care companies and commercial health insurance companies on state licensure and related state healthcare regulations in connection with expansion of their service and product lines across state borders.

Other

  • Represented a group of 20 hospitals in suit brought against the tobacco companies to recover the unreimbursed costs of providing care for tobacco related disease to the uninsured.

Education

  • University of Pittsburgh School of Law, J.D., with honors, 1976
  • University of Pittsburgh, M.B.A., with honors
  • University of Pittsburgh, B.S., with high honors

Admissions

  • California
  • Colorado
  • District of Columbia
  • Florida
  • Pennsylvania

Courts

  • U.S. Court of Appeals for the D.C. Circuit
  • U.S. Courts of Appeals for the 3rd, 4th and 10th Circuits
  • U.S. Supreme Court

Memberships and Affiliations

  • American Health Lawyers Association
    • Former Vice-Chair of Tax and Finance Practice Group (2006-08)
  • Hospital Financial Managers Association
    • Former Co-Chair of Reimbursement Committee (Colorado Chapter)
  • Member of Editorial Board, The Corporate Compliance & Regulatory Newsletter (2003-2008)
  • National Bond Lawyers Association (1990-present)
  • Immediate past Chair, Healthcare Law Section of Colorado Bar Association
  • American Bar Association
    • Chairman on Health Care Organizations of the American Bar Association Tax Section’s Committee on Exempt Organizations (1982-86)
    • Member, Tax Section’s Committee on Exempt Organizations
    • Member, Health Law Section
  • Past Chair, Health care Law Section of Colorado Bar Association

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