I am a successful physician who works for a thriving practice that is affiliated with a local hospital or Ambulatory Surgical Center (“ASC”). The hospital/ASC was so impressed with my professionalism and skills that they retained me to perform certain additional duties and services for them. Of course, they are paying me for my time and services. This is great, I love my work, I am generating two sources of respectable income – all is good.
Not so fast!
As can sometimes be the case, all is good while there is smooth sailing and while the money is coming in. However, once there is a bump in the road, a hiccup in a procedure, or a third party employee files a complaint with the Equal Employment Opportunity Commission (“EEOC”); the Florida Commission on Human Relations (“FCHR”); Department of Labor (“DOL”) or any federal or state agency complaining about some alleged incident in their workplace. Their filing of a lawsuit can be against you individually, against your practice or against the hospital/ASC. Not to mention, a lawsuit can be filed by a patient or third party against the practice or the hospital/ASC. Then what?
A Final Rule recently issued by CMS will require Medicare, Medicaid, and CHIP (Children’s Health Insurance Program) providers and suppliers to disclose current and previous affiliations (direct or indirect) with a provider or supplier that: (1) has uncollected debt; (2) has been or is excluded by the OIG (Office of Inspector General) from Medicare, Medicaid or CHIP, or (3) has had its billing privileges with either of these three programs denied or revoked. Such provider affiliations may lead to enrollment being denied if it poses a risk to fraud, waste or abuse.
Deciding you want to open your own medspa or start a medical practice is the first and most important step in creating something unique and building a brand. Understanding how to properly “start” that business from a legal perspective, and doing so correctly can be the difference between success and failure.
As a physician in a private, solo-practice, or the business owner of a medspa startup, proper strategy is key. Understanding your corporate structure, developing a business plan, and compliance with the laws will help eliminate pesky obstacles that will slow your growth.
When working with start-ups the following steps should be given plenty of time and attention.
In Florida, a licensed physician can provide supervision of healthcare providers that are not physicians under certain circumstances. Understanding who a physician can cover and under what circumstances can help protect your license and avoid receiving a complaint by the Florida Department of Health.
In every case, when a physician agrees to supervise another provider, Florida law requires certain documentation and notice to be filed.
Many physician groups and health care companies will enter the market at some point to sell their business. In the rare case, the selling group will already have a buyer who is ready and willing to pay and close on the business sale. More often than not however, most sellers will utilize the services of a business broker to help find a suitable buyer, and will compensate the broker on a commission basis upon closing. Unlike real estate closings, whereby the main concern is the title of the property being conveyed, medical practice sales require much more detailed representation on all aspects of the business, including but not limited to, real property, existing contracts, existing patients, and medical equipment.
Before signing a business broker listing agreement, ensure that the following points are considered to avoid potential pitfalls:
Has your attorney ever told you to do your best to comply with certain safe harbors to the Federal Anti-Kickback Statute, and you’ll be likely to survive scrutiny under the Florida Patient Brokering Act (the PBA)? If you’ve heard that, it’s time to re-examine that relationship. In the last month, the Patient Brokering Act has been amended, and then interpreted by a court of law in a way that affects all healthcare providers.
The Patient Brokering Act has been used in recent years to prosecute abuses in the addiction treatment industry. Other healthcare providers subject to the act have largely been uninvolved in these prosecutions. However, the PBA has been remolded 4 times in the past 5 years as a means to tailor it to allow for prosecutions of bad actors in healthcare, including addiction treatment. One item should be made clear: the PBA applies to any facility at all that is licensed by the Agency for Healthcare Administration (AHCA) or practitioner licensed by the Department of Health (DOH), including physicians, surgery centers, home health agencies, skilled nursing facilities, hospitals, DME providers, diagnostic imaging facilities, clinical laboratories, pharmacies and many other. During the legislative process, barely any healthcare industry representatives (from any provider group) showed up to any legislative workshops or produced counterbalancing input or language proposals that reflected a broader perspective.
The indictments and regulatory activities that took place on April 9th were just the tip of the iceberg when it comes to the crackdown on DME fraud, telemarketing and telemedicine operations.
In the weeks and months that have followed ‘Operation Brace Yourself’, healthcare providers (such as DME suppliers and telehealth physicians) and telemarketers allegedly involved in these activities have been subjected to a wide range of penalties from suspension of Medicare billing privileges to civil penalties and/or criminal charges. Here are some of the more serious recent DME, telemarketing and telemedicine related civil and criminal regulatory enforcement actions:
The Fourth District Court of Appeal just ruled that the fact that a person received and acted on the advice of a lawyer is inadmissible when being prosecuted for violating the Florida Patient Brokering Act.
Florida Patient Brokering Act
The Court found that the Act is a “general intent” crime, not a “specific intent” crime because it does not specifically say it’s illegal to do the specified things “knowingly and willingly” (or words to that effect). Had the law contained such language, it would have been considered to be a “specific intent crime,” thus entitling the accused to introduce into evidence the fact that the person got legal advice before engaging in the targeted conduct.
The ruling ALSO creates an opportunity for the Legislature to reexamine the law to see if specific intent language makes sense. We strongly believe that it should, since the federal law the Act was originally modeled on (the Anti-Kickback Statute) contains such specific intent-type language. And while the Act has exceptions that would still apply to prosecuted individuals, the ruling underscores the importance of reexamining any and all compensation arrangements between healthcare providers, especially those connected in any way to patient referrals or business generation.
At the end of June, Governor DeSantis signed into law various additions and clarifications to the requirements of offices and clinics allowing liposuction procedures. Should your office perform these types of procedures, please review below and speak with an attorney about your obligations.
Mandatory State Registration: On or before January 1, 2020, every office in which a physician performs a liposuction procedure removing more than 1,000 cubic centimeters of supernatant fat must register with the State in order to perform such a surgery in office. (Exceptions are made for offices that maintain State licenses under either Chapter 390 or Chapter 395, Florida Statutes.)
On June 3, 2019, the Department of Health and Human Services Office of the Inspector General (the “OIG”) issued a Fraud Alert titled: Genetic Testing Scam. Though the alert is short, the fact that the alert itself was issued is important. The OIG doesn’t often issue fraud alerts, so taking an affirmative step like this shows an increased likelihood of regulatory action.
Physicians, take note. If you are working with a laboratory
providing genetic testing services, be sure that laboratory is (1) running
those specimens on its own equipment; (2) only sending out testing equipment
after receiving your order; and (3) has in place policies and procedures
designed to accurately bill for the services it performs and other compliance
Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.