Keep these 6 rules in mind when soliciting physician-investors for your new surgical facility.

1. Projections and promises can get you into trouble. Avoid distributing any materials or handouts at preliminary meetings. In presentations to potential investors, focus on the facts and refrain from discussing predictions of revenue. Prudence on this front can shield you against disappointed investors' legal claims in the event that your facility takes longer to ramp up than you had forecast.

2. Are investors "accredited?" Securities laws will afford your ASC some protection from claims if your physician-investors meet the "accredited investor test." An investor is considered accredited if he's had an income of at least $200,000 in each of the previous 2 years and is expecting an income of at least $200,000 in the current year, or if an investor has a net worth of at least $1 million. Before accepting any funds from physician-investors, ask each one to execute a legal document confirming his status as an accredited investor.

3. Do investors meet the exemptions to both federal and state securities laws? Before offering interests to physician-investors, be certain that they meet the exemptions to both federal and state securities laws. If you violate these requirements, you could trigger an investigation, fines or investor rights allowing backers to rescind their funding.

4. Do investors meet the one-third tests? The eligibility of investors is driven in large part by the ASC safe harbor provision of the federal Anti-kickback Statute. In general, to be protected against criminal or civil charges, the ASC must serve as an extension of a physician-investor's office practice. For this reason, primary care physicians and other practitioners who don't perform ASC procedures are generally excluded from such investment. Before offering equity to potential investors, examine their qualifications, including whether they meet or will be able to meet safe harbor standards — most notably the one-third tests.

At single-specialty ASCs, physician-investors must be surgeons or proceduralists engaged in that specialty, with at least one-third of each investor's medical practice income from all sources during the previous fiscal year or 12-month period coming from the performance of procedures on Medicare's ASC list (the "one-third income test").

At multispecialty ASCs, physician-investors must not only meet the one-third income test, but must also perform at least one-third of their ASC procedures during the applicable measuring period at their ASCs (the "one-third procedures test").

The ASC safe harbor lets certain physician group practices invest. Depending on the circumstances, it enables distribution and pricing flexibilities that aren't possible in the context of individual ownership. When purchasing ASC interests, group practices should be composed exclusively of physicians who meet the safe harbor — including the one-third income test and (if the ASC is multispecialty) the one-third procedures test — to collectively satisfy safe harbor requirements.

5. Disclose risks associated with investing. Securities laws also require you to disclose any and all material risks associated with investment in an ASC before you offer equity to potential investors. The more disclosure there is of possible risks, the more protected an ASC is from investors' claims. Many ASCs, particularly those making offerings to a large number of physicians, opt to prepare and distribute a "private placement memorandum," which provides detailed disclosures of the risks associated with investing and helps to ensure that every investor understands the ASC deal.

6. Setting the price. You can't determine the value of interests in a new ASC through a typical fair market value analysis because the facility won't have an operating history or trailing EBITDA. Instead, consider your startup and working capital needs and make each investor's capital investment large enough that he is taking a true risk by investing in the ASC. Don't let a corporate partner loan capital to new investors for the purpose of investing it back into the company, or let other investors make loans to potential investors for that purpose. Any such loan would raise serious regulatory concerns and would also render the ASC ineligible for safe harbor protection.

Due to federal and state anti-kickback laws, the terms and amount of equity offered to investors shouldn't be related to their previous or expected volume of referrals. Instead, they should be offered equal opportunities to invest on equal terms and to purchase the same number of units, even though an individual investor may choose to buy fewer than the full number of units offered.