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Florida Healthcare Law Firm Continues Team Expansion with Addition of Dean Viskovich, Laboratory Compliance & Operations Specialist

October 7th, 2020 by

FHLF Laboratory AttorneyFlorida Healthcare Law Firm in Delray Beach, FL has exceeded their 2020 growth plans with the fourth hire this year, seasoned attorney Dean Viskovich, aka “The Lab Guy”. Dean will play an essential role representing healthcare businesses and providers with respect to regulatory compliance matters and is uniquely experienced on issues pertaining to laboratory compliance, as well as laboratory operations. Dean has over 25 years’ experience in the health law space and is licensed in both Florida and New York.

Florida Healthcare Law Firm has announced that they have added Dean Viskovich, “The Lab Guy,” to the team. Dean brings a wealth of healthcare business expertise working on the inside in settings such as laboratories and health insurance companies. Dean has served as a trial attorney on behalf of insurance companies and healthcare providers. He specializes in laboratory compliance and offers education and training programs geared at OIG compliance. Dean’s extensive experience in laboratory compliance and operations includes Stark, Anti-Kickback, Fraudulent Claims Act, Safe Harbor and State regulatory provisions. Additional areas of expertise include billing, reimbursement, charge-master review, CPT, ICD-10, HCPC coding and audits. read more

$20M PLEA: DME Spider Web of Regulatory Enforcement Catches Another

September 28th, 2020 by

By: Michael Silverman

2019’s crackdown on use of improper (tele)marketing and telemedicine in the durable medical equipment industry – aptly named “Operation Brace Yourself” – continues to unfold as we head into the last quarter of 2020.

The latest pertinent Department of Justice press release, criminal information and guilty plea informs that a chiropractor in Florida recently pled guilty to one count of conspiracy to commit health care fraud surrounding his involvement in companies improperly billing Medicare (and other federally funded health care programs) for durable medical equipment.

This individual admitted that he and his co-conspirators received more than $10,000,000 in payments after fraudulently billing more than $20,000,000 for durable medical equipment through several different companies. read more

Home Health Acquisitions On the Run

September 15th, 2020 by

Home health acquisitions private equity transactionBy: Jeff Cohen

Home health agencies everywhere have become the favorite targeted acquisitions of “the financial world.”  Apparently, there is one seminar that every buyer attended convincing buyers or all kinds (buyers with money, buyers without money, buyers in the private equity space) that:

  1. HHAs are ripe for aggregation because the industry is disaggregated; and
  2. HHA owners lack business sophistication necessary to bring their businesses to the “next level.”

Unfortunately, some of the buyers lack any true industry experience and are looking at acquisition targets solely from a financial perspective.  They’re looking principally at business financials and nothing else.  And, worse yet, they’re not focused on the centrality of operational expertise.  All of which can come crushing down on the head of seller financed acquisitions.  In other words, if the buyer is paying the purchase price over time, the seller is effectively financing the transaction because the purchase proceeds are (in theory) coming from seller operational profits. This may make the transaction possible, but operations will ensure company profitability and growth, which is gonna drive seller interest.

So what?  A lot!  As current HHA owners know, the secret sauce is in not financial analytics.  It’s in the operations!  And the financial due diligence is just a part of the equation. What about regulatory due diligence? What about knowing where the bodies are buried (legally speaking)?  What are the payer relationships?  What are the marketing relationships?  What is really driving the business?  Who is the key reason why the HHA is successful?  It is typically one or two people.  And missing that or retiring them is a recipe for disaster for buyers and seller financed sellers.  As is missing illegal payments made to induce patient referrals, which can shut down even a completed transaction in a heartbeat.  None of this is part of the usual [financial] due diligence!

Lawyers might say “Yeah, but there will be plenty or reps and warranties to cover the transaction. And the indemnification sections will be tight.” So what?  The buyer doesn’t want a pig in a poke.  They want a reliable and growing income stream.  Details matter.  Especially the details both buyers and sellers are missing!

Further, if a buyer thinks they can buy an HHA on the cheap (1) without proper due diligence, (2) with lawyers waiting to get paid if the transaction closes and funds, and (3) with heavy seller financing, think again.  If you’re dealing with a buyer with pockets (or you have pockets) and will spend the right money on proper due diligence, the right (and experienced) marketing and management, have at it!  The HHA industry is ripe for aggregation.  But doing it in “the new way” isn’t new at all.  It’s just defective and a recipe for lots of heartache…and litigation.

Real buyers love due diligence. They love to measure twice (three times is even better!) and cut once.  They love either understanding the business they’re buying or buying the operational talent.  And they understand and embrace the notion of putting hard money to work.  They don’t try to buy something for nothing or find lawyers who don’t have enough work to do who are willing to work for free.  Real buyers are not trying to get something for nothing.  And they don’t allow a financial flow focus to blind them to the daily “wax on; wax off” aspects of the business.  Doing so would disappoint both sellers and buyer investors.

It’s great to see so much activity in the HHA space.  But the ones that win and stay will only be the ones that do it the old fashioned away—They’ll Earn It!

What’s All This Talk About 340B Discount Drug Programs?

September 8th, 2020 by

340B Discount Drug ProgramBy: Jackie Bain

There has been so much in the news lately about 340B Discount Drug Programs and the fraud that accompanies them.

The 340B Discount Drug Program allows manufacturers participating in Medicaid to agree to provide outpatient drugs to certain designated clinics and hospitals at significantly reduced prices. The typical discount ranges from 30% to 50% off the drug’s list price. In turn those clinics/hospitals are able to reach more high-risk, high-need patients and provide more comprehensive services. Each designated clinic/hospital involved in the program is called a “covered entity.”

Covered entities may provide drugs purchased through the 340B Discount Drug Program to all eligible patients of that covered entity, regardless of a patient’s payer status. In order to be a “patient” of a specific covered entity, an individual (1) must have an established relationship with the covered entity such that the covered entity maintains records of the individual’s care; and (2) must receive care from a professional employed by or contracted with the covered entity such that responsibility for the care remains with the covered entity. Under the guidelines, an individual is not considered a patient of the covered entity if the individual only is dispensed a drug for the patient to take at home. read more

Patient Brokering & Money Laundering: Bieda Arrests Raise Serious Issues

September 1st, 2020 by

patient brokering arrest treatment center toxicology lab ownershipThree family members involved in owning an addiction treatment center and/or a toxicology lab were charged in July with patient brokering and money laundering in an alleged scheme involving roughly $2 Million.  The allegations arise out of a complex corporate enterprise involving at least four companies and some common ownership between the treatment center and lab.  While it’s premature to assume that the defendants did anything illegal, there are some interesting things in this case:

Complexity Invites Suspicion.  Every business owner in the addiction treatment and toxicology lab space knows three things:  (1) it’s extremely regulated, (2) law enforcement has an especially sharpened focus on these industries, and (3) insurance companies are very suspect of any situation involving either industry, especially when there is any common ownership.  So why then would one construct an enterprise that even “looks” complex or tricky?  It intensifies suspicion in an already highly scrutinized business space.  This is clearly one of the points of focus in this case.  There’s an old saying woven into the mind of every experienced healthcare lawyer:  if something can’t be done directly, it can’t be done indirectly.  Time will tell if anything in this case was wrong or if there are any good reasons for the corporate structure, but the complexity of the corporate structure certainly invites suspicion. read more

Considering Compliance in Out of Network Physician Owned Specialty Hospitals

June 9th, 2020 by

florida healthcare law firm physician owned hospital compliance infoBy: Jacqueline Bain

Out of network physician owned specialty hospitals are unique in that there are less stringent legal requirements on the facility, but patient care obligations remain the same. This means that patient care must be prioritized over profits and all actions taken by the hospital and any physician investor must showcase that order of priority.

Given the amount of scrutiny placed in physician owned specialty hospitals in the past two decades, these facilities are well served to identify and implement a process to remedy compliance concerns. Even when a facility does not submit claims to any Federal health insurance provider and is out of network with all commercial insurance companies, it is still required to follow the laws of the state where it is located.

The best plan for surviving scrutiny in such situations is to have a plan. Proactively seek out applicable laws and regulations, and determine how your hospital will abide by them. Compliance can be tailored to fit your facility.

Overutilization and Self-Referrals

A physician who shares ownership in a hospital may have a financial incentive to refer patients for services if he or she receives a percentage of the revenue generated. Laws including the Federal Stark Law and Anti-Kickback Statute were promulgated to combat unnecessary referrals. A 2003 study by the Department of Health and Human Services concluded that physician-investor referrals to hospitals in which they have an investment interest are similar to those physicians without investment interests. Nevertheless, the fear of overutilization and unnecessary self referral remains at the forefront of the regulators’ minds at both the State and Federal level. read more

COVID-19 Temporary Waivers and New Rules Issued by CMS to Combat the Pandemic

April 2nd, 2020 by

covid-19 temporary waiverBy: Susan St. John

CMS has issued temporary waivers and new rules to help the American health care system address the increased need for health care services caused by COVID-19. Among the waivers, CMS is allowing hospitals to set up services in alternative sites to accommodate increased patient census. Hospitals may be allowed to use ASCs, inpatient rehab hospitals, hotels and dormitories for non-COVID-19 patients or patients not requiring critical inpatient services. Hospitals are also being encouraged to increase staffing, allowing hospitals to increase staff through hiring of local and non-local providers/practitioners as long as they are appropriately licensed in the same state as the hospital or another state. However, even though CMS has created flexibility for rendering services during this pandemic, use of alternative “hospital” sites and expansion of hiring staff must comport with a state’s emergency preparedness or pandemic response plan. read more

What Nurse Practitioner Practice Expansion Means for Doctors

March 27th, 2020 by

nurse practitioner practiceBy: Jeff Cohen

The issue of scope of practice is front and center in Florida right now with the expansion of what nurse practitioners (and nurse midwives) are legally permitted to do.  The newly enacted 464.0123 allows for qualified APRNs (there is specific criteria) to practice independent of a supervising physician in the following areas of medicine–primary care, family medicine, general pediatrics, and general internal medicine.

Even more, assuming they meet the membership criteria for admission to a healthcare facility medical staff, they may admit patients, manage patient care, and discharge patients.  One of the only preserved connections with a physician established by the law is if the APRN practices at a healthcare facility, a transfer agreement including a physician is required.  Additionally, the new law establishes a Council On Advanced Practice Registered Nurse Autonomous Practice, two members of which are appointed by the Board of Medicine and an additional two appointed by the Board of Osteopathic Medicine.       read more

Buying a Dental Practice

February 11th, 2020 by

buying a dental practiceBy: Chase Howard

Those in the practice of dentistry today have many options when it comes to building a practice. Should you work for an employer? Build your own? What about buy a practice? More and more, we see young dentists wishing to avoid private equity and buying out a retiring dentist’s practice. The amount of regulation imposed upon those entering into the dental practice arena can be staggering. Further, buying a dental practice requires many considerations that are unique to other areas of business. Understanding the purchase process will help protect your investment and could keep you from experiencing any unnecessary liability.

First, organize a team of specialized dental experts, such as a dental CPA, Professional Practice Lender, dental law attorney, and a practice consultant. Having a team of professionals guide you through all aspects of the deal will keep you on track, avoid potential issues, accomplish specific task items, and properly comply with any legal considerations. read more

Modifier 25 Requirements for Avoiding Potential Billing Fraud

February 7th, 2020 by

modifier 25By: Dave Davidson

On February 4, 2020, the Department of Justice announced a $1.5 million settlement with Southeastern Retina Associates, a 17 physician practice, with offices in Tennessee, Georgia and Virginia.  The sole basis of the claim was the alleged misuse of the Modifier 25 billing code and charging for exams at higher levels than warranted.  The claim was initiated by a whistleblower, who will receive $270,000 from the settlement.

Use and potential abuse of Modifier 25 is obviously not unique to retina surgeons.  In fact, the modifier can be very beneficial to providers, since it allows for payment for those patient visits when the care provided exceeds the scope of the scheduled appointment.  However, given the potential for abuse and the many watchful eyes of the government (the Southeastern Retina case was investigated by the U.S. Attorney’s Office, the HHS Office of Inspector General, the U.S. Office of Personnel Management, the FBI, and the Tennessee Attorney General’s Office) and wannabe whistleblowers, a periodic review of a provider’s billing practices is always a good idea. read more