Zoning & Use Issues For Healthcare Practices

Amanda Howard, Esq.

If you’re thinking about starting your healthcare practice from the ground up or purchasing an established practice and its real estate, zoning and use issues should be on your mind. It’s critical to understand what activities are allowed to be done, and perhaps more importantly, what activities are NOT allowed to be done on your soon-to-be property and the restrictions your building may be subject to. To figure these things out, you can research appropriate building codes and zoning information on your county’s property appraiser website and use interactive maps or obtain a zoning report or request a letter from your local planning and zoning office, which will summarize existing code requirements and highlight areas of potential non-compliance. In cases where a particular zone does not permit healthcare facilities, a zone change may be possible (but that’s a topic for another time).

Some questions that are important to ask in determining whether a particular property is suitable for your practice are as follows:

  1. Is zoning impacted by county or city regulations?
  2. What is your type of practice defined as under county or city zoning regulations?
  3. Which districts or areas permit your type of healthcare practice?
  4. Must your practice be outside of residential areas?
  5. Is your practice limited to a certain amount of square feet?
  6. Is your building subject to certain aesthetic requirements?
  7. Is there a setback requirement for your building?
  8. Can the services you provide only be provided during certain hours?
  9. How much parking is your practice allotted?

These questions may never cross a buyer’s mind. However, not knowing their answers and others may cause a major headache during the closing process and potentially even kill a deal to purchase a property. That’s why it’s important to get advice from a professional.

Get Help

As a boutique law firm dedicated to supporting the healthcare community, our goal is to help healthcare professionals comply with all laws so that they can be safe in their profession and practices.If you would like to learn more about zoning and use issues and get advice on how to proceed, contact us at Florida Healthcare Law Firm to set up a consultation today.

No Surprise Act AKA Good Faith Estimates

The Centers for Medicare & Medicaid Services (“CMS”) effective January 1, 2022 has ramped up the new No Surprise Act (“NSA”) or often called the “Good Faith Law”. This law shall apply to group health plans, health insurers, health care providers and health care facilities (“Providers”). The NSA requires health care providers to be proactive and reactive as it relates to providing patients who are self-pay or shall receive out-of-network bills from their health insurance a pre-bill outlining the services they are intending to receive and could potentially receive.

Self-Pay

Self-Pay patients apply to a wide range of medical providers; therefore, the importance of this law is crucial for providers accepting cash patients. The provider will be required to transmit to patients itemized disclosures of the services offered at the facility, these disclosures are called “Good Faith Estimates”. A Good Faith Estimate will include various detailed terms that a patient must have upon request, or a provider will be required to inform a patient that said estimate is available to them when inquiring about services. The disclosure will be required at the front desk and on the providers website.

Out-of-Network

If a provider treats patients who have insurance coverage and is not in network with said insurance plan, the provider is subject to and will have to abide by the NSA.

The driving complaint by patients that lead to the institution of the NSA was surprise medical bills, which are essentially caused by balance billing. Balance billing occurs when a provider bills an amount or difference not covered by an insurance plan. Under the NSA, providers will have to implement the proper disclosure requirement of this practice, which must be presented to patients prior to the treatment. Providers will be required to obtain notice and consent forms signed by patients authorizing any additional billing not covered by the out-of-network coverage prior to providing said treatment.

Does Not Apply To

The NSA will not apply to vision or dental insurance plans which are solitary plans. However, if the vision and dental is an added benefit to a health plan it will be covered. The NSA will not apply to balance billing practices for those in the ground ambulance business. Providers who service Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE shall not apply to NSA.

Penalties for Non-Compliance

A patient shall be allowed to dispute any bill charge in excess of $400 personally or through an independent third party, a “dispute resolution entity”, which shall determine the amount owed by the patient. An email shall be sent to the provider stating that a dispute has arisen, and the provider will be required to upload certain documentation surrounding the dispute. During a dispute resolution period, providers will not be allowed to move the bill into collection or threaten collection, if collection is already ongoing it shall be paused, late fees on the unpaid bill shall not be collectable, and any threats of retaliation against the disputing patient shall not be permitted. However, providers shall have the option to settle the claim with a patient directly abiding by the above, upon executing a settlement form. Failure to adhere to the NSA shall result in penalties up to $10,000 per violation.

Considering Compliance in Out of Network Physician Owned Specialty Hospitals

florida healthcare law firm physician owned hospital compliance info

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.Continue reading

The Debate Over Physician Owned Hospitals

florida healthcare law firm physician owned hospitals

florida healthcare law firm physician owned hospitalsBy: Dave Davidson

The debate over the pro’s and con’s of physician-owned hospitals has been raging for decades. Physician-owners say their hospitals are more patient-focused, provide higher quality care, obtain better outcomes and therefore receive higher patient satisfaction scores. They also point out their convenience and efficiency.

Opponents argue that physician-ownership leads to overutilization and cherry-picking of only the best patients. The less-desirable patients (both clinically and financially) are then left to be taken care of by the community hospitals. For those reasons, both the American Hospital Association and the Federation of American Hospitals remain strongly opposed to physician-owned hospitals.

Federally, the Stark Law includes an exception which allows a physician to refer patients to a hospital in which the physician has an ownership interest, so long as the ownership interest is in the entire hospital, and not just a subdivision of the hospital. However, in 2010, the federal government weighed in again on the issue, and passed the Affordable Care Act (ACA), which includes provisions which (i) restrict physician referrals to hospitals in which they hold an ownership interest; (ii) restrict any increases in physician-ownership of a hospital; and (iii) restrict expansion of physician-owned hospital facilities. CMS has granted exceptions to these restrictions, but those have been limited to rural hospitals and high Medicaid hospitals, and attempts to amend the law have failed.Continue reading

Addiction Treatment Law Evolution: EMTALA Needs Updates for Opioid Crisis

By: Karina Gonzalez

With the opioid epidemic in South Florida at crisis levels, there is an increasing demand on local hospital emergency departments for screening and evaluations of drug overdoses, considered a medical emergency. Addiction treatment law evolves with EMTALA updates.   Many patients receiving substance abuse treatment in this community are coming from out-of-state.  Many are young, under 35 years and a majority receive outpatient services.  Overdoses are occurring more frequently as patients deliberately misuse opioid prescriptions such as Fentanyl or an illicit drugs such as heroin.  If the patient possesses and or uses an illicit drug while in treatment, the policy in many facilities is to terminate treatment and discharge the patient. But if the patient has overdosed, the facility will place a call to 911 and that patient will end up with a visit to a local emergency department.   A discharged patient will often continue using and end up in the emergency department, taken there by paramedics or some other individual.

Evolution of EMTALA

Local emergency departments now play a pivotal role in the next steps that an overdosed patient may take.   Is the patient receiving their EMTALA rights (Emergency Medical Treatment and Labor Act), a federal law requiring anyone coming to a hospital emergency department to be screened and examined?  If an emergency medical condition exists, treatment is provided to relieve or eliminate the emergency medical condition within the service capability of the hospital, a difficult task with substance abuse. Continue reading

EMTALA Compliance: A Primer

EMTALABy: Dave Davidson

In 1986 President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (EMTALA) into law.  Since then, the application of the law has been expanded and refined.  It was one of the first laws giving the government the authority to dictate certain operations of a hospital.  While other laws and regulations such as the Anti-Kickback Statute and the Stark Law have become more of a focus for health care providers, EMTALA remains an area of active enforcement.  All providers with hospital privileges should therefore be aware of its application.

The policy behind the law is fairly straightforward.  Hospitals with emergency departments should not be able to turn away patients needing care because of their inability to pay (no more “wallet biopsies” as part of triage).  Likewise, hospitals should not be able to “dump” patients on other facilities for reasons other than for advanced care.

The requirements of the law are also very basic.  If a patient comes to an emergency department and requests an examination or treatment for a medical condition, the hospital must provide an appropriate medical screening exam, within its capability, to determine whether or not the patient has an emergency medical condition.  The screening provided goes beyond simple triage, and must be performed by a clinical provider such as a physician, nurse practitioner, or physician’s assistant.Continue reading