Did you know? With the passage and recent implementation of Florida’s Senate Bill 1742 there is a new exemption in place for the otherwise required Home Medical Equipment (“HME”) license for providing TENS units to patients.
More specifically, as of July 1, 2020 MDs, DOs and DCs are now exempt from that HME licensure requirement so long as such licensed healthcare practitioners are engaged in the sale or rent of such electro stimulation equipment to their patients in the course of their practice.
Conventional wisdom tells us that spending less money is the most effective approach to saving money. After all, a penny saved is a penny earned and the more you save, the more you have left over. That logic is hard to argue with, but it is not always fool proof. Saving money for your practice the wrong way can lead to diminished patient care, outdated equipment, the wrong location for your practice and additional negative results.
There are several critical factors often overlooked when a healthcare practice’s primary focus is paying the lowest rent vs. achieving the best combination of overall terms. Let’s look at three factors where paying higher rent could actually increase your profitability.
#1: The Cost to Build
Healthcare buildouts often cost two-to-three times more than a typical commercial real estate space. This is attributed to many factors that are unique to healthcare, including:
More durable finishes
Millwork and cabinetry
Plumbing and sinks in exam rooms, sterilization centers and laboratories
Increased electrical and HVAC requirements (heating, ventilation and air conditioning)
Investing in a healthcare related business involves significant time and money. Building a brand takes even more and is extremely important in today’s society. Having the ability to build a recognizable brand, scale, and potentially sell, is the goal of many healthcare business entrepreneurs. With the ever-booming impact of social media, online advertising, and online reviews, healthcare businesses seek to engage at a higher degree than ever before to attract new patients, retain current patients, and establish themselves as experts in their respective fields.
Building a brand is part of it, while protecting that brand is far more important. A well-recognized word or logo can be worth everything to your business. Obtaining ownership and protection over a name or mark is a fairly simply task with significant rewards. Trademarks are the names, slogans, tag lines, and/or logos that identify and represent your business, its services, and mission to the public, and are the foundation for the business’s overall branding and marketing. Trademarks can also be used to protect your business in a specific area or a specific area of expertise. If you do not protect your brand, a competitor could use it (or something similar, which could confuse the public and your patients and therefore potentially draw business away from your brand.
You may not be aware that the Third DCA ruled earlier this year that “Physical Therapy Modalities & Services” such as electrical muscle stimulation, ultrasound, heat, ice, and traction are not reimbursable under PIP when rendered by a massage therapist in any practice setting. Pointing in part to a law that took effect January 1, 2013 an appeals court sided with Geico General Insurance Co. in a dispute about paying for physical-therapy services provided by massage therapists to auto-accident victims.
The Miami-Dade County case involved bills for three patients sent by Beacon Healthcare Center, Inc., under the state’s personal injury protection, or PIP, insurance system.
Physical therapy and physical therapy modalities (i.e. electrical muscle stimulation, ultrasound, heat, ice, and traction) were prescribed for auto accident patients by Beacon’s treating physician and medical director which were performed by massage therapists rather than physical therapists. Neither a licensed physician nor a physical therapist directly supervised the care performed by the massage therapists. However, when Beacon billed GEICO they noted that the supervising physician, and not the massage therapists, provided treatment. The billing statements also indicated that the massage therapists performed physical therapy modalities under the direct supervision of the medical director, whose only responsibility was to review patient files monthly. Geico General Insurance Company denied payment, which led to Beacon filing a suit in Circuit Court.
As of July 1, 2020, all Florida health care providers, and providers in training, are now required to obtain written consent from their patients (or their legal representatives) before performing a pelvic exam. The only exceptions to this requirement are when the exam is done pursuant to a court order, or in cases of emergency. Given the broad application of the new law, it is imperative for any provider who may need to perform a pelvic exam on a patient, even if it’s a fairly rare occurrence, to be ready to obtain the consent.
The law grew out of concerns for improper actions taken against sedated patients. And as initially proposed, it only covered pelvic exams performed in training settings. However, the legislature expanded the scope to include all settings and all providers.
On June 30, 2020, State Surgeon General, Scott A. Rivkees, M.D., issued Emergency Order (“EO”) 20-011, which further extends EO 20-002 until the expiration of the Governor’s Executive Order No. 20-52, or any extensions thereof. Thus, EO 20-011 continues to allow out-of-state MDs, DOs, APRNs and PAs, to offer telehealth services to persons in Florida.
EO 20-011 continues to allow Florida licensed controlled substance prescribers (MDs, DOs, APRNs, PAs) to issue renewal prescriptions of controlled substances for non-malignant pain for existing patients. Additionally, EO 20-011 extends a qualified physician’s ability to recertify an existing qualified and certified patient’s continued use of medical marijuana using telehealth services. These further extensions are also tied to the expiration of Executive Order 20-52 and any extension thereof.
I recently wrote an article titled The Top Five Legal Concerns When Developing a Healthcare App, and I received some follow up questions, including technical queries about encryption and data sharing. To answer these questions, it is important to understand the current Healthcare App state of affairs. Various reporters, governmental agencies and privacy watchdogs have installed and monitored the flow of data from Healthcare Apps installed on smart phones. These journals, articles and enforcement actions taken together provide a roadmap for Do’s and Don’ts for the sharing of data.
Almost all Healthcare Apps are free and have some disclosures about how they share your data, and both iOS and Android require the user to give permission to the newly installed App, but who really pays attention to that? Almost no one. However, this doesn’t mean that an App developer shouldn’t embrace best practices to avoid liability and bad press.
In the beginning of June, 2020, the Department of Justice (“DOJ”) revised its Evaluation of Corporate Compliance Programs Guidance Document. The Document is designed to assist prosecutors in making informed decisions as to whether, and to what extent, the company’s compliance program is effectivefor purposes of determining, when a compliance violation has occurred, the appropriate form of any resolution or prosecution and monetary penalty. It also guides a prosecutor as to the company’s compliance obligations contained in any criminal resolution. The Document has been revised on three occasions since 2017, telegraphing the DOJ’s intent to prosecute those businesses without compliance plans, or without effective compliance plans, more harshly than those taking steps to identify and remedy risks.
A healthcare business’ failure to have in place a compliance program designed to detect and respond to potential fraud and security risks places it at a serious risk of civil and criminal liability. When a compliance issue is investigated, charged and resolved, DOJ prosecutors are instructed to consider whether the business has invested in and improved its corporate compliance program and internal controls systems. They must also determine whether those improvements have been tested to demonstrate that they would prevent or detect similar misconduct in the future. According to the DOJ, there are three fundamental questions that a prosecutor should ask when determining whether a business’ compliance plan is sound:
In March, the Florida Legislature passed multiple bills that would allow advanced practice registered nurses (APRN) to practice independently of physicians in the delivery of primary care practice. The law, however, went into full effect on July 1. Still, the law did not automatically grant autonomous practice to all nurse practitioners. Rather, an application process is still needed, as well as final regulations governing the new law.
In June, the Florida Board of Nursing voted to move forward with the drafting of rules and the application process to be designated as an independent practice Nurse Practitioner. This process usually takes three months to complete before it is open for practitioners to apply. The Board also voted to define “primary care practice” to include “health promotion, disease prevention, health maintenance, counseling, patient education, and diagnosis and treatment of acute and chronic illnesses in a variety of healthcare settings.”
Until final rules are decided, a nurse practitioner will at least need to meet the following requirements:
Florida Healthcare Law Firms adds experienced attorney Zach Simpson to the team to assist with pharmacy law, imaging center compliance, as well as chiropractic law, healthcare business development and contract negotiation.
Florida Healthcare Law Firm has announced that they have added Zach Simpson to the team. Zach brings a wealth of healthcare business experience in settings such as private medical practices, large law firms and healthcare management companies. Zach specializes in areas including operations, process, procedures, rules, regulations, management, organization, compliance, analytics, and problem solving. He’s also worked on physician dispensing programs and within numerous medical systems mastering programs like Abbadox, PACS, K-Pacs, Carestream, Merge, and Telax to improve the efficiency of medical centers’ day-to-day activities.
“Now more than ever, healthcare businesses are taking the time to attend to important tasks like processes, policies and procedures. The ones who unfortunately closed during COVID had some ‘downtime’ to focus on what to do better when reopening. Zach’s wide variety of experience in medical offices brings first hand knowledge on how to prepare and how to run things smoothly. As we all have adapted to a ‘new normal,’ Zach is on board to help with business management and development,” Florida Healthcare Law Firm COO Autumn Piccolo says. Founder and President, Jeff Cohen, goes on to say that, “We help you with the business operation side so that you can focus on what you do best, care for patients. Zach’s organizational skills and leadership are a great addition for current and future clients. His analytical and negotiation skills will absolutely benefit healthcare business owners.”
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.