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David A. Chorney

Associate

[email protected]

+1.617.348.1681

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David focuses his practice on health care matters, and is a member of Mintz’s health care transaction deal team which works on complex health care industry transactions, including mergers and acquisitions, joint ventures, and affiliations, for health care providers and investors across the United States. In addition to providing advice and counsel to health care providers such as health care systems, physician practice groups, health insurance and managed care organizations, and other health care groups, David advises private equity groups and investors on issues identified in due diligence for potential transactions, corporate structure, licensure, and health care fraud and abuse including, Stark, anti-kickback, and other regulatory matters.

His recent health care industry merger and acquisition activity includes acquisitions and sales, joint ventures, and strategic affiliations totaling over one billion dollars for clients across the health care spectrum, including a Fortune 250 company, and providers of radiology services, hospital development and management services, fertility services, addiction treatment, telehealth, managed care, pharmacy, and behavioral health services. He has also advised clients on a broad range of health law matters, including Determination of Need and guiding clients through the regulatory aspects of capital projects and other strategic initiatives, medical peer review matters, hospital operations, health care policies and procedures, medical staff credentialing, and general business and corporate matters, including day-to-day business strategy, corporate governance, corporate compliance, contracting, and HIPAA compliance.

Prior to joining Mintz, David was a Rappaport Legal Fellow in Governor Deval Patrick’s Office of Legal Counsel, where he drafted and analyzed issues related to health care regulations, including regulations related to MassHealth, dentistry, and pharmacy; drafted Executive Orders and agency testimony for legislative hearings; and analyzed legal and policy issues related to the Commonwealth’s opioid crisis and the implementation of medical marijuana licensing and dispensaries.

Education

  • Suffolk University (JD, cum laude)
  • Muhlenberg College (BA)

Recognition & Awards

  • Rappaport Legal Fellow (2014)
  • Muhlenberg College: Recognized as an All American and inducted into the Muhlenberg College Hall of Fame in recognition of accomplishments in collegiate track and field events  
  • Included on the Massachusetts Super Lawyers: Rising Stars –  Health Care list (2019-2020)

Involvement

  • Co-chair, Health Law Committee, Federal Bar Association, Massachusetts Chapter (September 2017 – Present)
  • Public Interest Leadership Program, Boston Bar Association (September 2017 – August 2018)
  • Associates Drive Captain, Greater Boston Legal Services (May 2017 – August 2018)
  • Executive Leadership Committee, Lawyers Have Heart (2016 – Present)

Viewpoints

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363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers

September 11, 2020 | Blog | By Deborah Daccord, William Kannel, Rachel Irving Pitts, David Chorney, Tim McKeon

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a "363 Sale”). We are back with our second post, to provide more detail to the process and discuss some pros and cons of 363 Sales.

As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.
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363 Sales as a Health Care M&A Tool, Part 1 – Overview

July 28, 2020 | Blog | By Deborah Daccord, William Kannel, Rachel Irving Pitts, Tim McKeon, David Chorney

Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.

For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.
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Congress and the White House Continue Efforts to Respond to Coronavirus

March 19, 2020 | Blog | By Anthony DeMaio, David Chorney

The response to the coronavirus situation is fluid and fast-moving – particularly by Congress’ standards.  In response to the coronavirus pandemic, three phases of legislation have been considered in Congress: Coronavirus Supplemental Appropriations Act (signed into law March 6th); Families First Coronavirus Response Act (signed into law March 18th); and a large ($1 trillion+) economic recovery package (currently being drafted). This post provides details about these legislative efforts and other recent actions by the White House to address the coronavirus pandemic.
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Massachusetts Considers Drug Pricing Transparency Laws

February 10, 2020 | Blog | By David Chorney

Like many states, Massachusetts is considering drug pricing transparency legislation. The legislation would require pharmaceutical manufacturers to disclose certain pricing information.  Governor Charlie Baker has proposed legislation which would expand upon current reporting requirements for drug manufacturers in Massachusetts, and the Massachusetts Senate passed legislation which includes drug price transparency requirements and increased regulatory oversight of the pharmaceutical industry in Massachusetts. 
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In June 2019, the Delaware Supreme Court issued a decision reaffirming a risk of director liability where there is no board-level reporting process for essential compliance matters.  The facts of the case arise from a 2015 listeria outbreak at Blue Bell manufacturing which resulted in the death of three people. The Delaware case reaffirmed the position that directors may be subject to liability if the director “(1) completely fail[ed] to implement any reporting or information system or controls, or (2) having implemented such a system or controls, consciously fail[ed] to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.”  
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As predicted by our colleagues earlier this month, outgoing Commissioner Scott Gottlieb of the U.S. Food and Drug Administration (FDA) released a comprehensive press release setting forth actions for possible FDA regulation of CBD products. FDA also reinforced its position that introducing CBD or THC infused products into interstate commerce, including marketing CBD and THC dietary supplements, continues to be illegal.  In furtherance of this position, FDA released three warning letters to businesses marketing CBD products for using “egregious and unfounded claims aimed at vulnerable populations.”
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On January 9, 2019, AdvaMed announced revisions to its Code of Ethics.  As any medical product business knows, compliance with the AdvaMed Code of Ethics (the “Code”) is essential.  While the Code is voluntary, many states require medical product manufacturers and companies to adopt compliance programs consistent with the Code.  The amendments will be effective January 1, 2020.
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The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) recently announced a no-fault settlement, including a $125,000 penalty and a two year corrective action plan for Allergy Associates of Hartford, P.C. The settlement was reached after a physician at Allergy Associates disclosed protected health information (PHI) about a patient to a local television station.
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Six Things to Know About the New Section 1332 Waiver Guidance

October 25, 2018 | Blog | By David Chorney

Recently, the Department of Health and Human Services (“HHS”) and the Department of Treasury (“Treasury”) released new guidelines (the “Guidance”) on the application and approval process for states seeking waivers through Section 1332 of the Patient Protection and Affordable Care Act (“ACA”) from certain requirements for health plans issued under the ACA. The Guidance replaces guidelines issued under the Obama Administration and previously published on December 16, 2015. This post highlights how the Guidance differs from the Obama Administration guidelines and what those differences will mean for states seeking Section 1332 waivers.
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