David Gilboa

David Gilboa

David Gilboa represents hospitals, health systems, physician groups, home care agencies, skilled nursing facilities, and other health care entities (both for profit and not-for profit) on a variety of health law and business issues, including transactional, corporate, regulatory, and compliance matters. He has extensive experience representing healthcare providers in all legal and regulatory matters. David is a member of the firm’s Health Law Group.

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Eleventh Circuit Endorses Objective Falsehood Standard for False Claims Cases Concerning Physician Judgment of Hospice Eligibility

“A mere difference of opinion between physicians, without more, is not enough to show falsity.”

In a 3-0 decision issued September 9, 2019, the U.S. Court of Appeals for the Eleventh Circuit affirmed a three-year-old district court ruling in United States v. AseraCare, Inc. that a Medicare claim for hospice services cannot be deemed false under the False Claims Act (FCA) based on a difference in clinical judgment. This decision – apparently the first circuit-level determination of the “standard for falsity [under the FCA] in the context of the Medicare …

SHIELD Act Becomes Law, Expanding Breach Notification and Data Security Requirements

On July 25, 2019, New York Governor Andrew Cuomo signed the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) into law. The SHIELD Act modifies the current Breach Notification Law to expand the types of data elements that are considered “private information” and to expand the data breach disclosure requirements for individuals and businesses. Moreover, the law creates a requirement that owners or licensors of private information meet a new “reasonable security requirement.”…

New York Court of Appeals Holds that PCs that Cede Excessive Control to MSOs Violate the Corporate Practice of Medicine Doctrine

On June 11, 2019, the New York Court of Appeals issued an opinion in Andrew Carothers, M.D., P.C. v. Progressive Insurance Company, 2019 NY Slip Op 04643, holding that an insurer could withhold payments for medical services provided by professional corporations “when there is willful and material failure to abide by licensing and incorporation statutes” without a direct finding of fraud.  The court found that medical professional corporations (PCs) ceding too much control of management activities, including finances and operations, to a non-physician violates the Business Corporation law and …

New York Legislature Passes Bill Allowing Employees to Place a Lien on Employer’s Property for Wage Claims

The New York Senate and Assembly recently passed Senate Bill S2844B to strengthen current laws for employees who are victims of wage theft to secure and collect unpaid wages from their employers for work already performed. This bill would amend five sections of the law (Lien Law; Labor Law; Attachment under the Civil Practice Law and Rules; the Business Corporations Law; and the Limited Liability Law). If signed by the Governor, this bill would create a broad right for any employee to obtain a lien on an employer’s property based …

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