Jacqueline A. Bain

Attorney Certified in Healthcare Compliance

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“I love providing compliant solutions to the complex business puzzles that our clients bring us and I strive to do it better and faster than anyone else.”

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On February 8, 2017, Florida Senator Jeff Clemens (Dem.) filed a bill entitled “Marketing Practices for Substance Abuse Services” (SB 0788). A sister bill was filed in Florida’s House of Representatives by Bill Hager (Rep.) on February 13, 2017 (HB 807).

In the most general sense, the bills propose the following:

  • creation of a marketing fraud statute specific to substance abuse treatment centers;
  • mandating that all recovery residences, even those owned by treatment centers, receive FARR certification prior to suggesting that patients reside there;
  • requiring lead generators, call centers and other web based marketing providers to make certain disclosures to consumers;
  • requiring lead generators, call centers and other web based marketing providers to be licensed by the State of Florida Bureau of Professional Regulations;
  • allowing the State Attorney’s office to prosecute patient brokering;
  • institutes and increases fines for convictions of patient brokering; and
  • expanding the definition criminal definition of “racketeering” to include patient brokering.

The bills also expand investigation and prosecution ability of the State and reduces substance abuse patient privacy in criminal investigations. If passed, the bill would grant law enforcement access to substance abuse patient records in criminal investigations. It also permits the State Department of Legal Affairs to investigate and prosecute patient brokering allegations.

The full text of each bill is available here and here.

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Recently, a Florida-based physician practice specializing in pain management was ordered to pay the Federal Government $7.4 after it was determined that the group’s physicians were ordering medically unnecessary drug screens and billing Medicare for those tests. Federal prosecutors contended that the group’s physicians had appropriately ordered initial drug screens on many patients, but had inappropriately ordered more extensive (and more expensive) follow up tests nearly 100% of the time. Moreover, patient medical records did not reflect the need for more extensive testing.

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Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.

HIPAA is a federal law designed for safe disclosure of patient’s protected health information.  The news headlines showcase giant penalties for violations.  However, Florida health care providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act.  So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.

So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure?  Responses vary based on the situation presented, but below is a good jumping off point:

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The amount of regulation imposed upon those entering into the healthcare business arena can be staggering even for a highly experienced businessman. In the business world, buying and selling businesses is often accompanied by lawyers, documents and consultants.  In the healthcare business world, buying into and selling healthcare businesses, or any portion of health care businesses, requires all of that support and much more.

Diving into a healthcare business requires many considerations that are unique to other areas of business. First, appropriate licensing bodies must be notified and/or approve any such purchase or sale. For instance, in the State of Florida:

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