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Addiction treatment law is not only a very serious area, but it is also one that is constantly changing. There are many wonderful facilities around the state that help people battle addiction whether it be to drugs, alcohol or anything else. However, operating one of these facilities is not easy and there are several laws that have to be followed as well as licenses and regulations that have to be met. It’s a lot of work and one mistake made whether it’s knowing about a new rule or getting the right paperwork done can cause serious problems and put your business at risk. That’s why you want to have an experienced team of attorney’s available to handle these matters.

The Florida Healthcare Law Firm has years of experience handling addiction treatment law and will be happy to assist you with these matters. We understand that the rules are always changing and that you need to be made aware of these changes, know what must be done to keep things up to the standards required of you and what legal options and requirements you have. That’s why speaking with an attorney is the best option to ensure you are getting the right advice.

State Patient Brokering Act Cases to Throw out Legal Advice as Defense

October 9th, 2018 by

palm beach county task forceBy: Jeff Cohen

There are two criminal cases pending in Palm Beach County that threaten to put a bullet in the heart of healthcare professionals and businesses and also the law practices that advise them.  Both State v. Simeone and State v. Kigar have a motion from the State pending before them to block any testimony that the defendants received legal advice concerning a contract entered into by an addiction treatment facility and a sober home.  The State alleges that the contract violates the state Patient Brokering Act (PBA) because it was essentially a ruse whereby the addiction treatment facility was just paying for the sober home to refer patients.  Now the State wants to make sure that the entire issue of the defendants being advised by counsel never sees the light of day.

How is this possible?  How can it be that a client can seek legal counsel, get advise (and presumably follow it), and then be blocked from presenting that evidence?  The State argues that the PBA has no wording that requires them to prove intent.  And if intent isn’t an element to be proven, the argument goes, then evidence of the client intending not to violate the law by getting advice beforehand is inadmissible!   read more

False Claims Act Case Beaten by Bona Fide Employee Arrangement

August 23rd, 2018 by

false claims actBy: Jeff Cohen     

One healthcare employer’s compensation arrangement with its employees just got much needed support from the 11th Circuit Court of Appeals.  The employer there, which provided AIDS patients certain healthcare related services, paid its employees a bonus of $100 per patient.  The case was brought on the argument that the compensation arrangement constituted an illegal kickback under the federal Anti- Kickback Statute.  The court, however, disagreed because the employees who received the bonuses were “bona fide employees.”

The court’s focus on the plain language of the safe harbor for bona fide employees was refreshingly clear, notably that “any amount paid by an employer to an employee (who has a bona fide employment relationship with such an employer) for employment in the furnishing or any item or service.”  Essentially, any amount paid by an employer to a bona fide employee is not considered to be “remuneration” under the Anti-Kickback Statute. read more

Florida Recovery Communities Face Tougher Zoning Regulations

August 6th, 2018 by

zoning florida lawBy: Matt Fischer

Municipalities throughout the nation continue to use zoning to exclude community residences from residential districts despite the presence of numerous court decisions that recognize community residences for people with disabilities as a residential use.  Over the past year multiple Florida cities have imposed tougher regulations on community residences for people with disabilities.  These communities include group homes, sober living homes, recovery communities, and assisted living facilities that emulate a biological family.  In creating these regulations, cities cite to the protection of individuals from the actions of unscrupulous operators and also the need to avoid a concentration of community residences in one area that have shown to undermine the goals of the residents.  Thus, if you are an operator in one of these cities, you may be subject to heightened scrutiny and additional documentation requirements ranging from simple registration to submitting an application for a conditional use permit requiring an appearance before a planning and zoning board. read more

State Court Ruling on Patient Brokering Act Threatens Healthcare Facilities and Providers

July 25th, 2018 by

patient brokering actA recent ruling by a state trial court handling the Palm Beach County Sober Home Task Force prosecutions against providers of addiction treatment and sober home services is creating lots of confusion and alarm around the state and could have very far reaching consequences for the entire healthcare industry well beyond addiction treatment.

The issue presented by the prosecution focuses on whether a person charged with violating the state’s Patient Brokering Act (PBA) can be found guilty even if he/she didn’t know what he was doing was unlawful. The PBA broadly prohibits paying someone for patient referrals, very much like the federal Anti-Kickback statute.  If allowed, the client would have gotten legal advice, paid for it, followed it, and still not be able to show a judge or jury that, despite all their best efforts, they simply followed the law as instructed.

Can a healthcare facility or provider be guilty of violating a criminal law [the PBA] if they’d gotten legal advice and followed it?  Traditionally, the answer would be a clear “no.”  The argument against the State’s position would be something like “How can someone intend to violate a criminal law if they got legal advice regarding how to comply with it and then followed that advice?”  The argument of the state might look something like “We don’t even think the judge or jury ought to be able to hear that the person got legal advice and followed it.”  The court punted the issue to the appellate court. read more

FARR Certification Needs Clarification from DCF

June 13th, 2018 by

FARR certificationState licensed addiction treatment facilities with licenses that include community housing are confused about whether they have to also be certified by the Florida Association of Recovery Residences (FARR) by July 1, 2018.  Attorney Karina Gonzalez  has filed a petition with the Department of Children and Families (DCF) to clarify the issue.  A fairly recent state law (397.4873, Fla. Stat.) requires addiction treatment service providers in Florida to refer clients only to recovery residences certified by FARR.

FARR is a private, non-governmental entity approved by DCF to develop and administer a voluntary certification program for recovery residences.  FARR has taken the position that it has also been approved to develop and administer a voluntary certification program for DCF-licensed community housing providers.  “We think,” attorney Gonzalez said, “they’ve got it wrong.  It makes no sense to stack the FARR certification requirement on top of existing state licensure.”

FARR Certification Deadline: Are Licensed Treatment Providers that are NOT Recovery Residences Required to get FARR Certified?

June 13th, 2018 by

FARR Certification DeadlineBy: Karina Gonzalez

There are a rash of blogs, bulletins, memos, e-mails relaying that Florida DCF licensed Day/Night with Community Housing licensees (D/N with Community Housing) must be certified by FARR by July 1, 2018 in order to refer or accept referrals and not be sanctioned. The referral prohibitions in 397.4873 (2), Fla. Stat. show they apply after July 1, 2018 when a licensed service provider is referring to that provider’s wholly owned subsidiary. But there is no requirement for certification when the licensee, the entity licensed by DCF to provide services, is not  a wholly owned subsidiary.

As of June 12th, Florida Healthcare Law Firm has served a Petition for Declaratory Statement on the Agency by a Day/Night with Community Housing licensee to seek clarification on whether Voluntary Certification of Recovery Residences administered by FARR under 397.487 Fla. Stat. applies to a licensed D/N with Community Housing program when the community housing is owned by the same service provider.  Other D/N with Community Housing and Res 5 providers have a narrow window of opportunity to intervene in the action and work alongside FHLF to get clarification from DCF and potentially avoid FARR sanctions.  read more

Big Rule Changes Proposed for DCF Licensed Substance Abuse Treatment Centers

January 9th, 2018 by

substance abuse licensingBy: Jacqueline Bain

On December 29, 2017, the Department of Children and Families (DCF) submitted comments for proposed changed to rule 65D-30, governing licensed substance abuse service providers. The proposed rule includes significant changes as compared to old 65D-30, and should be reviewed as soon as possible by all DCF-licensed substance abuse service providers.  Comments must be received by DCF on or before January 19, 2018, and can be submitted via the form at the bottom of THIS LINK .The proposed changes are substantial, and we strongly recommend someone in each licensed service provider reviews them as soon as possible in order to ensure timely compliance.

This article will focus on changes in the licensing component of DCF’s rules. read more

Telehealth Law Florida: Delivery System for Substance Abuse Services

January 9th, 2018 by

telemedicine lawBy: Karina Gonzalez

Telehealth law Florida is constantly evolving The latest example is found with Florida’s Department of Children and Families (DCF) recent proposed rule change which now includes a definition of Telehealth as a delivery system in substance abuse.  Telehealth can be used in treatment or prevention services through electronic communications from one site to another.  However, it does not include delivery of services using only the audio on a telephone, or e-mails, text messages, fax transmissions, US mail or other parcel service. Proposed Rule 65D-30.0031 (83) Definitions.

Telehealth services can be used in intensive outpatient, day or night treatment, day or night treatment with community housing, outpatient, interventions, aftercare, and prevention.   If a substance abuse provider plans on including telehealth services it must submit to DCF detailed procedures outlining which services it intends to provide. The provider will be responsible for the quality of the equipment and technology used in the telehealth service. Proposed Rule 65D-30.004 (20) Common Licensing Standards. read more

New HIPAA Guidance for Substance Abuse and Mental Health Information

January 5th, 2018 by

HIPAA PHIBy: Dave Davidson

In December 2016, the US Congress passed the 21st Century Cures Act, which, among other things, provided for increased funding for treatment and research of mental health and substance abuse disorders.  That law also required the HHS Office of Civil Rights (OCR) to provide guidance in regards to HIPAA compliance in regards to those types of treatment.  In October 2017, President Donald Trump declared the opioid addiction epidemic to be a public health emergency, which will also result in additional resources being allocated to addressing the crisis.

In connection with both the new law and the President’s declaration, OCR published its HIPAA guidance in December 2017.  The guidance is intended to clarify how and when protected health information (PHI) can be shared in regards to patients in substance abuse and mental health treatment.  According to OCR Director Roger Severino, “HHS is using every tool at its disposal to help communities devastated by opioids, including educating families and doctors on how they can share information to help save the lives of loved ones.” read more

Is Your Substance Abuse Marketing Service Licensed? Check Here

November 28th, 2017 by

addiction marketingBefore doing business in Florida, an entity providing substance abuse marketing services must be licensed by Florida’s Department of Agriculture and Consumer Protection. This includes includes either telephone solicitation from a location in Florida or solicitation from other states or nations for substance abuse and addiction treatment centers located in Florida.

As of November 27, 2017, only the following entities are licensed by the State of Florida to provide marketing services to substance abuse and addiction treatment centers:

  • A Way and a Means, LLC (Delray Beach, Florida)
  • Addiction International Holdings, LLC d/b/a The Addiction Advisor d/b/a The Recovery Miracle (Boca Raton, Florida)
  • Advanced Recovery Systems, LLC (Winter Park, Florida)
  • Bandwidth Interactive Company d/b/a Local Management (Boca Raton, Florida)
  • Delphi Behavioral Health Group, LLC (Fort Lauderdale, Florida)
  • Freedom From Addiction, LLC (Miami Beach, Florida)
  • Infoworx Direct, LLC d/b/a Addiction Hope and Help Line (Boca Raton, Florida)
  • Invigorate Solutions, LLC d/b/a Local Management (Boca Raton, Florida)
  • Meridian Treatment Solutions, LLC (Lauderdale by the Sea, Florida)
  • NPA Consulting Group, LLC (Pompano Beach, Florida)
  • Palm Partners, LLC (Palm Springs, Florida)
  • Parent Team, LLC (Santa Rosa, California)
  • Pryme Time Media, LLC (Sunrise, Florida)
  • R360, LLC (Fort Lauderdale, Florida)
  • Redwood Recovery Solutions, LLC d/b/a com (Riviera Beach, Florida)
  • Ring2Media, LLC (Westport, Connecticut)
  • Rybchinskiy Inc. (Boynton Beach, Florida)
  • Sober Network, Inc. (Delray Beach, Florida)
  • The Addiction Network, LLC (North Miami, Florida)
  • True Choice Health Group Limited Liability Company (Pompano Beach, Florida)
  • United Addiction Specialists, LLC (Hollywood, Florida)
  • USR Holdings, LLC (Coconut Creek, Florida)

It is a third degree felony for: any person to work for an entity that does not have a current and valid license; or for any entity to invite telephone calls or other communications with a substance abuse marketer who is soliciting clients without a current and valid substance abuse marketing license; or for any person or entity to solicit without a license; or for any person who otherwise violates the law requiring licensure either directly or indirectly. Any person who is convicted of a second or subsequent violation commits a felony of the second degree.