Florida Department of Children and Families (DCF) is vested with authority over substance abuse services and is responsible to approve at least one credentialing entity to develop and administer a voluntary certification program for recovery residences also referred to as sober homes. DCF approved FARR (Florida Association of Recovery Residences) as the provider for the voluntary certification program, and it is the only certifying entity, it is the only game in town for sober homes. The issue at hand now is not whether certification is good or necessary for the sober living industry, rather, the issue is that sober homes have no due process giving them an entry point into the system to challenge DCF or FARR when their certification has been denied, revoked or suspended or some other sanction has been imposed!
While sober home certification is referred to as “voluntary” there is absolutely nothing voluntary about it. A sober home will not be able to keep its business running without FARR certification. This is because substance abuse providers cannot refer any of their clients to a sober home that is not FARR certified and cannot accept a referral from an uncertified sober home. This prohibition on referrals to and from non-FARR certified sober homes also makes it a first-degree misdemeanor for anyone who violates the prohibition. In addition, there is an administrative fine of $1000 per occurrence in the law should anyone violate the referral prohibition.
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!
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.
State 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.”
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.
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.
Earlier this month, Attorney General Jeff Sessions announced the formation of the Opioid Fraud and Abuse Detection Unit, which is a pilot program of the United Stated Department of Justice. AG Sessions noted that there are three components to approach the opioid crisis that our nation faces: prevention, treatment and enforcement.
Prevention. AG Sessions noted briefly that the DOJ is undertaking that component through raising awareness, through drug take-back programs, and through DEA’s 360 Strategy program, which incorporates law enforcement, diversion control and community outreach to tackle the cycle of violence and addiction in US cities. He also stated that law enforcement is a component of prevention.
Treatment. AG Sessions articulated that treatment can help break the cycle of addiction and crime and help people get their lives back together.
Enforcement. AG Sessions dove deep in the area of enforcement, reasoning that enforcing our laws helps keep drugs out of the hands of our citizens, decreases their availability, drives up their price, and reduces their purity and addictiveness. He added, “Enforcement will make a difference in turning the tide in this epidemic.”
One of the biggest challenges faced by addiction treatment providers today, especially in Palm Beach County, Florida, arises in the context of unprecedented pressure by law enforcement via the Sober Home Task Force, newspapers and insurers. The threat of being targeted by law enforcement is an enormous thing in itself. Add to that the mainstream media’s insatiable desire for readers, the industry’s drop into insurer red flagging and recoupment, the political football nature of addiction and addiction treatment, and treatment providers can lapse into a state of paralyzed tunnel vision, a sort of mass hypnosis. Here’s the problem: providers dealing with the current compliance crisis environment have a lot to lose if they take their eye off the bigger picture. The more absorbed they become in “crisis mode,” the more likely they will miss important addiction treatment compliance details in an increasingly regulated and changing industry. Losing the ability to see the entire picture (and trends) and quickly adapting to it can have costly (and even deadly) consequences.
The addiction treatment industry is like any other healthcare provider—enormously and increasingly regulated, highly scrutinized and always dynamic. The moment it took on features of traditional healthcare (e.g. lab and physician services), it left the relatively warm and fuzzy comfort of behavioral health providers, sorta. “Sorta” because medical behavioral health (e.g. psychology and counseling) has not had it easy in the past 10 years, as it came under crushing price compression with managed care driven networks and other price cutting middlemen that have often been owned or controlled by insurance companies. Addiction treatment providers in the pure behavioral health space were “saved” from all this till about three years ago because they were out of network and not the focus of insurer driven price cuts. As payors (and their price cut incentivized middle men) looked for more ways to drive up profits, the competitive and disorganized addiction treatment sector became a natural (and unprepared) sector to hit. And they hit it hard! Clearly, the Perfect Storm. Addiction treatment providers now have no option but to learn to swim hard and fast in the ever changing river of the healthcare business industry.
Most of the commercial payors are paying PHP (Partial Hospitalization Plan) and IOP (Intensive Treatment Plan) at a bundled daily rate. Many of the plans are now adding urine drug screens to the bundled daily rate and imposing a cap on the number of screens that can be done during an admission. Plans are paying rates that are much nearer to a Medicare rates. Payments based on a reasonable percentage of a provider’s charge are becoming harder to find, as the calculation of what is a usual and customary rate of payment continues to decline.
Yet, a great portion of substance abuse facilities are operating with more clinical staff, at a higher level through licensure, with better Electronic Medical Systems, more programs to combat some of the symptoms of addiction and with a greater awareness of compliance with state and federal guidelines. Even with these necessary improvements, reimbursements continue to decline.
By: Jeff Cohen, Florida Board Certified Healthcare Lawyer
Followers of the addiction treatment industry should be on high alert after the arrest of Christopher Hutson of Whole Life Recovery. The arrest marks the first arrest of any industry provider utilizing the state Patient Brokering Act (PBA). Relying solely on the allegations, the arrest is based on a business relationship between the provider and sober homes. Discussion in the “case management agreement” referred to in the arrest affidavit circles around some key allegations that include or imply (1) payment for patient referral, and (2) services by sober homes paid for by Whole Life which were not actually performed.
Serious industry providers absolutely MUST be well educated by lawyers who have years’ experience dealing daily with issues that include the federal Anti-Kickback Statute (and safe harbors), the bona fide employee exception to the AKS, the PBA and how insurers and regulators (inside Florida and outside Florida) interpret and apply such laws. Any contract (like the sort of agreement referred to in the arrest warrant affidavit) that isn’t preceded by careful client education about the laws, the options and risks of each option is just reckless. Clients who are well educated will understand things like—
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.