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.
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? read more
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: read more
In 2018, theGlobal Wellness Institute (GWI) released its report “Build Well to Live Well” on the global and regional wellness lifestyle real estate and communities market. The report highlighted various emerging real estate wellness living concepts that will drive future development, and create a surge in the $134 Billion dollar industry, expected through 2022, to reach $180 billion.
The lines between home, work and leisure are less defined. Your neighbor can be your patient, your coach or your nutritionist. The millennial generation and others are focused on living where their needs for healthy and long life are considered. Many people are willing to pay out of pocket for services that contribute to their health and wellness. Medical industry groups and health services will have to catalyze in order to build these wellness communities. These communities will be created by combining medical industry companies and research organizations, high quality hospitals and health services for consumers, and holistically designed wellness focused homes and neighborhoods. read more
Over the past few years, it seems like physician employment agreements are getting shorter and shorter. While I applaud all efforts towards efficiency and economy, you should not always take those documents at face value. For example, I recently reviewed a one page employment contract for a client. That single page basically said, “We are hiring you as our employee for a term of one year, with an annual salary of $$$.”
At first glance, the simplicity of that document might seem refreshing. That’s especially true if you’re worried about how much time it’s going to take for your lawyer to get through it! My client’s second glance revealed a multitude of unanswered (and essential) questions. There was no mention of expected duties, schedules, standards, renewals, terminations, insurance, benefits, vacation time, sick leave, CME, etc. in the employment contract However, when we reviewed the contract together, we discovered that although those points were not even referenced on that single page, they were still legally, “in there.” read more
Private money (e.g. private equity) is in full swing purchasing medical practices with large profit margins (e.g. dermatology). This is NOT the same thing as when physician practice management companies (PPMCs) bought practices the 90s. Back then, the stimulus for the seller was (a) uncertainty re practice profits in the future, and (b) the stock price. Selling practices got some or all of the purchase price in stock, with the hopes the purchasing company stock would far exceed the multiplier applied to practice “earnings” (the “multiple”). Buyers promised to stabilize and even enhance revenues with better management and better payer contracting. If the optimism of the acquiring company and selling doctors was on target, everyone won because the large stock price made money for both the buyer and seller. The private equity “play” today is a little different.
Today’s sellers are approaching the private equity opportunity the same way they did with PPMCs, except for the stock focus since most private equity purchases don’t involve selling doctors obtaining stock. Sellers hope their current practice earnings will equate to a large “purchase price.” And they hope the buyer have better front and back office management that will result in more stable and even enhanced earnings. And for this, the private equity buyer takes a “management fee,” which they typically promise (though not in writing) to offset with enhanced practice earnings. read more
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
As the provision of health care services continues to evolve, many practitioners are contemplating creating membership-based services for their patients through Direct Primary Care Agreements (“DPCA”). Although DPCAs are not necessarily a new concept, the Florida Legislature enacted a bill during the 2018 legislative session making DPCA’s exempt from the Florida Insurance Code. Thus, DPCAs are not a form of insurance subject to regulations of insurance products but are private contracts between practitioner and patient for specified health care services. Here is how the DPCA concept works.
DPCAs are private contracts between patients and primary care providers. Section 624.27, Florida Statutes, defines primary care provider as a provider licensed pursuant to Chapters 458, 459, 460, and 464, or a primary care group practice, who provides primary care services to patients. Included under this broad definition of providers are: allopathic doctors, osteopathic doctors, physician assistants, anesthesiologist assistants, chiropractors, RNs, LPNs and ARNPs. read more
Healthcare practitioners are excited about the expansive geographic scope of practice in Telemedicine. A licensed Florida physician can provide services in other states provided the physician is also licensed in the state where the patient is receiving the services. There are no geographical limitations if the delivery platform of technology provides voice and vision and where necessary videos for the Telemedicine/Telehealth visit.
As more and more physicians practice and contract to provide Telemedicine visits, one of the legal challenges we are facing is how to draft a restrictive covenant. The traditional reasonableness standards used to evaluate non-compete agreements just do not apply. What are you trying to restrict when the physician lives in Florida but has telemedicine practice with patients 500 miles away? read more
Prohibitions against balance billing Health Maintenance Organization (HMO) patients have been around for more than a decade, but many non-contracted providers to HMO patients still don’t fully understand their rights to payment when it comes to collecting monies from patients and HMO’s.
HMO’s often have predetermined rates they pay to non-contracted healthcare providers; sometimes they are artificially low, do not reflect what is written in the member’s contract, or do not abide by what is required by applicable law. As a result, these providers may end up being underpaid if they don’t have a written contract with the payor and they do not understand the payment methodology being applied to them. This is of particular significance to emergency care providers. ER doctors and hospitals must, by law, provide emergency care without regard to whether the patient has an ability to pay for the treatment received.
Following their provision of emergency care, medical providers often question the payment obligations under the patient’s Health Maintenance Organization contract. If the emergency medical provider has a direct written contract, the reimbursement is governed by that participating provider contract’s reimbursement terms.
One of the most commonly overlooked components of a managed care contract is the definitions section despite the fact that what is contained here will affect the contracted provider on a daily basis. Contract terms that are too generic so that they are not clearly defined and understood as they relate to a particular area of practice can have a direct influence on clinical decision making. A patient may need a higher level of care but be approved for a lower level only. The provider knows that a patient may suffer if the level approved will not treat the illness or that the patient’s condition could deteriorate without a higher level of care.
Let’s take, for example, the definition of medical necessity in a contract. Who decides medical necessity? Is it the provider or is it the managed care organization (MCO)? Many contracts state that the term “medical necessity” relates only to the issue of reimbursement. Further, that the approval or denial of a claim is “for reimbursement purposes only” and should not affect the provider’s judgment on whether treatment is appropriate to treat the illness, symptoms or complaints of the patient. read more