Having trouble viewing this email? Click here

Hospital Killing Provisions Of 21st Century Cures Act Boost Physician Entrepreneurship

Yes, there is a Santa Claus.

Oh, sorry for the typo. I meant Santa Clauses as in the two major pro-physician provisions of the 21st Century Cures Act, enacted in December by Congress and signed in to law.

Although coverage in the popular press centered on the Cures Act’s primary focus, medical research, innovation and acceleration of the FDA’s drug approval process, the Act contains two Medicare-related provisions of the utmost importance to physicians and their owned facilities.

Those same two provisions are additional nails in the coffin of traditional, bloated hospitals.

Price Transparency

The Cures Act requires the Department of Health and Human Services (HHS) to create a searchable website allowing the public to compare estimated Medicare payments for various procedures under each of the outpatient department fee schedule (i.e., the payment HOPDs receive) and the ambulatory surgical center payment system.

Importantly, the Act also requires the website to show the estimated Medicare beneficiary liability, the patient’s out-of-pocket costs assuming no supplemental insurance, for those same procedures.

With limited exceptions beginning in 2017, Medicare pays in excess of 50% more for procedures in an HOPD than it does in the ASC setting. Outpatient procedure are Medicare Part B services, covered only as to 80% by Medicare meaning.

As a result, Medicare beneficiaries almost always have greater out-of-pocket costs for the same procedure performed in an HOPD as opposed to in an ASC.

The impact of the Care Act’s price transparency will be that patients will clamor for their procedures to be performed at an ASC. Even if they’re not interested in protecting Medicare’s pocket book, they’ll be motivated to reduce their own out-of-pocket expenditures.

Private payors are likely to follow this same transparency trend, accelerating the already existing flow of commercial cases from hospitals to ASCs.

At the risk of losing patients, physicians wishing to retain an outpatient surgery caseload should shift their work from the HOPD setting to ASCs. That’s the case for both surgeons and for some hospital-based physicians such as anesthesiologists and radiologists.

In addition this signals the growing financial benefit from forming new ASCs to profit from outpatient procedures.

As technology continues to advance and CPT codes allowing ASC billing catch up to that reality, the independent outpatient business will become even more profitable.

Ending Physician Payment Disincentives

The second ASC-focused issue in the Cure Act facilitates the fiscal benefit to Medicare of shifting cases out of HOPDs to ASCs.

At issue was existing law pertaining to the use of “certified electronic health record technology,” referred to as certified EHR or “CEHRT,” that required physicians to use CEHRT for a minimum percentage of patients or suffer cuts in their Medicare reimbursement. Former law did not empower HHS to certify EHR platforms for the ASC setting. Accordingly, cases performed in an ASC would count against the minimum CEHRT percentage.

The Act authorizes HHS to certify EHR for the ASC setting, removing the payment disincentive for physicians who perform cases at an ASC.

The Bottom Lines For You

1. Patients will have financial information that compels them to have outpatient procedures in ASCs, not HOPDs.

2. Physicians’ incomes will not suffer as a result of performing cases in ASCs as opposed to at hospitals.

3. Hospitals are getting sicker and the Cures Act is simply more of what ails them. Approximately 70% of an average acute care hospital’s income comes from outpatient procedures and these procedures are streaming out the door to non-hospital facilities. (To learn more, download a complimentary copy of my book, The Impending Death of Hospitals, or, if you’d like it in hard copy, purchase it on Amazon.

4. Physician practices dependent upon hospitals must make strategic decisions, now, for your own future.

5. Physicians should immediately investigate whether ASC formation makes sense for you. (We’ve established a strategic alliance with HDA Enterprises, Inc., one of the nation’s most experienced and successful developers and managers of physician-owned outpatient facilities. Contact me immediately if you’d like to arrange for them to provide you with a complimentary initial analysis of how profitable an ASC will be for you.)


Wisdom. Applied. 96 - Don't Incentivize For What You Shouldn't Get

Bob, not his real name, was talking about one of his early post college jobs.

Just after graduation, he sold financial products over the phone. He was required to make 30 outbound cold calls each day.



2017 New Year's Un-Resolutions

We all make New Year’s resolutions. "I’ll do this or that!” Then January 5th rolls around and, well, you get the idea.

In keeping with our E-Alert New Year’s Tradition, here’s the hack. Flip things around: What will you not do, or stop doing, next year? Here are some suggestions for 2017:

1. Stop yearning for a return to the golden past; it wasn’t golden and it’s not coming back.

2. Stop putting all of your eggs in the basket called a hospital. Hospitals, as we know them, are an endangered species in a world in which diagnosis, treatment and care will quickly move to outpatient facilities and into patients’ homes.

3. Stop believing the promoter who says the deal “has been vetted by my lawyer and it’s perfectly legal.” If the deal involves you receiving a fee per adjudicated script, has you giving a discount, allows someone else to resell your services, or (and this should be obvious) has you paying them a fee per patient, consider how you’ll look in an orange jumpsuit.

4. Stop reacting to others’ proposals. Become proactive and lead with your own strategy, not simply tactics.

5. Stop settling for less. Don’t believe those who tell you that you have to lower your expectations. Set them as high as the stars. If you don’t, you’ll regret it sooner or later.

Oh, and one regular resolution: Resolve to have a very happy and successful New Year!

Recently Published Blog Posts

Forward This!

Feel free to forward this newsletter to your friends. They can sign up for their own copy here

Whenever you're ready, here are 3 ways I can help you and your business:

1. Download a copy of the Success or Failure? Book

My book Success or Failure? Strategic Tools For Medical Group Leaders provides you with a framework for thinking about your success. You can buy it on Amazon or, for free, download a copy at the following link - Click Here.

2. Be a guest on “Wisdom. Applied. Podcast.”

Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.

3. If You’re Not Yet a Client, Engage Me to Represent You.

If you’re not yet a client, and you’re interested in increasing your profit and managing your risk of loss, just reply to this message and put "One-on-One" in the subject line. I’ll contact you to set up a call or meeting.


Mark F. Weiss

The Mark F. Weiss Law Firm, a Professional Corporation
(Formerly known as Advisory Law Group, a Professional Corporation)
1227 De La Vina Street
Santa Barbara, CA  93101
Tel: 805 695 8107
10940 Wilshire Boulevard
16th Floor
Los Angeles, CA  90024
Tel: 310 843 2800
1717 McKinney Avenue
Suite 700
Dallas, TX 75202 
Tel: 972 392 9200
Fax (all locations):  877 883 0099
Read Mark Weiss' blog, "Wisdom. Applied." at www.advisorylawgroup.com/blo g1
Sign up for our complementary email newsletter, Advisory E-Alert, at www.advisorylawgroup.com
THIS EMAIL IS INTENDED ONLY FOR THE PERSON OR PERSONS TO WHOM IT IS ADDRESSED.  IF YOU ARE NOT AN INTENDED RECIPIENT, PLEASE CONTACT  MARKWEISS@ADVISORYLAWGROUP.COM IMMEDIATELY.  This email may contain confidential and/or privileged information protected under applicable law which may be exempt from disclosure.  If you are not an intended recipient or are not the person who is responsible for delivering the message to an intended recipient, please note that any distribution, copying or other dissemination of this email is absolutely prohibited.
© 2016 The Mark F. Weiss Law Firm, A Professional Corporation
The Mark F. Weiss Law Firm 1227 De La Vina St. Santa Barbara, California 93101 United States (310) 843-2800


Having fallen for the fallacy that there’s profit in market share, hospitals have gorged on acquisitions and on employment and alignment of physicians. Many physicians have been willing participants through practice sales and in the belief that there’s safety in hospital employment. But it’s becoming evident that physician employment leads to losses and that integrated care delivers neither better care nor lower costs. And now, technology is about to moot many of the reasons for a hospital’s existence. How can your practice survive and even thrive in the post-hospital world?
The Impending Death of Hospitals is available for purchase in hard copy or in Kindle format on Amazon or you can download a complimentary PDF version here.

Success Or Failure?
Strategic Tools For Medical Group
Leaders - Book Cover 
Today’s medical groups must confront multiple challenges: The impact of Obamacare. Increasing commoditization. More competition, not just from other physicians and medical professionals, but also from hospitals, investor-owned groups, and disruptive ventures. Yet at the same time, the future of healthcare offers medical groups tremendous opportunity.
This small book is a collection of essays, of thoughts as thinking tools for your success. Read. Think. Succeed. Repeat.
Interesting Image 
Some days, it seems as if everyone, from anesthesia groups to vascular surgery practices, is talking about selling their practice to a larger group, to private equity investors, or to a hospital.

The reality is that some practices can be sold, some can never be sold, and some have nothing to sell.

The reality also is that there are a number of strategic alternatives to a practice sale.


A perfect storm of factors is accelerating the market for hospital-based medical group mergers and acquisitions.  


Download Here>
Directions 2014 Cover
The healthcare market is changing rapidly, bringing new sets of problems.
How can you find a solution, how can you engage in the right development of strategy, and how can you to plan your, or your group’s, future without tools to help clarify your thinking?
Directions is a collection of thoughts as thinking tools, each intended to instruct, inform, and even more so, cause you to give pause to instruct and inform yourself.
Knowledge Products 
MFW Knowledge Products
If you're an independent learner or need a refresher on a current topic, click here to find out about our growing list of Knowledge Products.

Recent Interviews and Published Articles

Mark was quoted in the article ASC Regulatory Areas That Developers Need To Pay Attention To published on Nov. 9, 2016 in The Ambulatory M&A Advisor. Read or download here

Mark's article OIG Advisory Opinion Secrets and Strategies was published in the Summer 2016 volume of Communique. Read or download here.

Finders keepers, losers weepers. Except in connection with overpayments from Medicare, then it’s a violation of the federal False Claims Act leading to significant liability—that is, unless you repay the overpaid sum within 60 days. Read CMS Resets the Clock for Return Of Medicare Overpayments published on AnesthesiologyNews.com in May 2016. Read or download here.

Mark's article A New Strategy To Profit From Interventional Radiology, co-authored with Cecilia Kronawitter, was published on AuntMinne.com on May 23, 2016. Read or download here.

Three of Mark’s blog posts were republished as a column entitled Practice Challenges in the Spring 2016 issue of the Pennsylvania Society of Anesthesiologists Newsletter, the Sentinel. Read or download here.

Mark's article Is There An Interventional Radiology ASC (irASC) In Your Future? was published in the April/May 2016 volume of Radiology Business Journal. Read or download here.

Mark's article Impending Death of Hospitals: Will Your Anesthesia Practice Survive? was published in the winter 2016 volume of Communique. Read or download here.

Mark was quoted in the article Practice Patterns Change While Outcomes Remain Steady Among Older Anesthesiologists, published in the December 2015 issue of Anesthesiology News. Read or download here.
Mark's article Anesthesia Group Mergers, Acquisitions and (Importantly) Alternatives was published in the summer 2015 volume of Communique. Read or download here.
Mark was quoted in the article Anesthesiology Acquisition Rate Still at Fevered Pace, published in the July 2015 issue of Anesthesiology News. Read or download here
Mark's article Seeking Certainty In Radiology: Mergers, Acquisitions and Alternatives was published in June 2015 on Imagingbiz.com. Read or download here.