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.
Municipalities throughout the nation continue to use zoning to exclude community residences from residential districts despite the presence of numerous court decisions that recognize community residences for people with disabilities as a residential use. Over the past year multiple Florida cities have imposed tougher regulations on community residences for people with disabilities. These communities include group homes, sober living homes, recovery communities, and assisted living facilities that emulate a biological family. In creating these regulations, cities cite to the protection of individuals from the actions of unscrupulous operators and also the need to avoid a concentration of community residences in one area that have shown to undermine the goals of the residents. Thus, if you are an operator in one of these cities, you may be subject to heightened scrutiny and additional documentation requirements ranging from simple registration to submitting an application for a conditional use permit requiring an appearance before a planning and zoning board.
A recent ruling by a state trial court handling the Palm Beach County Sober Home Task Force prosecutions against providers of addiction treatment and sober home services is creating lots of confusion and alarm around the state and could have very far reaching consequences for the entire healthcare industry well beyond addiction treatment.
The issue presented by the prosecution focuses on whether a person charged with violating the state’s Patient Brokering Act (PBA) can be found guilty even if he/she didn’t know what he was doing was unlawful. The PBA broadly prohibits paying someone for patient referrals, very much like the federal Anti-Kickback statute. If allowed, the client would have gotten legal advice, paid for it, followed it, and still not be able to show a judge or jury that, despite all their best efforts, they simply followed the law as instructed.
Can a healthcare facility or provider be guilty of violating a criminal law [the PBA] if they’d gotten legal advice and followed it? Traditionally, the answer would be a clear “no.” The argument against the State’s position would be something like “How can someone intend to violate a criminal law if they got legal advice regarding how to comply with it and then followed that advice?” The argument of the state might look something like “We don’t even think the judge or jury ought to be able to hear that the person got legal advice and followed it.” The court punted the issue to the appellate court.
Florida’s Agency for Health Care Administration (“AHCA”) is the state’s chief health policy and planning organization. AHCA is also responsible for the state’s Medicaid program. One of the agency’s latest targets are behavioral analysis providers who treat children with autism. Recently, AHCA imposed a temporary six-month moratorium on enrollment of new providers due to newly discovered fraud and abuse. AHCA states that the temporary moratorium will allow the agency the time to complete a full assessment of the current provider population. In other words, all behavioral analysis providers will experience heightened scrutiny in the coming months if not already. This can include in-person interviews and requests for records. Given this increased regulatory action, it is important for behavioral analysis business owners to be aware of the audit process and to prepare for likely future reviews.
Here are a few of the notable findings cited by AHCA regarding the identified fraud and abuse:
On May 19, 2018, Delray Beach medical spa owner Jennifer Aspen was booked into the Palm Beach County Jail and charged with practicing medicine without a license. Ms. Aspen is the manager of Mermaid’s Skin & Wellness, a medical spa located in Delray Beach, Florida. The charges against Ms. Aspen stem from the fact that a Delray Beach police officer presented to Mermaid’s Skin & Wellness for a testosterone shot. Ms. Aspen stated to the officer that she would perform the injection. Ms. Aspen is a certified nursing assistant in the State of Florida. Her license is currently listed as “delinquent” on the Department of Health’s website, meaning that (as of today) she failed to renew her license after its May 30, 2018 expiration date. Certified nursing assistants are not generally allowed to administer testosterone in the State of Florida.
One of the legal issues that presents frequently in our office is med spa compliance; who can open and operate a medical spa if it is just a cash business, meaning that it does not submit claims for reimbursement to any government or commercial payor. Misunderstandings run rampant in the medical spa industry and many times patients are administered treatment from persons who are not supposed to be providing it.
Attorneys from the Florida Healthcare Law Firm will hold a live call to present an urgently needed update regarding FARR certification.
The recent petition for Declaratory Statement filed with the Department of Children and Families on behalf of Amethyst Recovery Center focuses on one thing: whether the FARR certification requirements for Recovery Residences also apply to facilities licensed by DCF to provide Day and Night treatment with community housing and to Res-5 housing. A review of FARR recovery residence certification shows that there is significant conflict with DCF requirements for licensure of treatment facilities that have a housing component. There are no referrals to and from the community housing component of Day and Night or for Res 5: patients are simply housed under the DCF licensed component while in treatment. Referrals from Recovery Residences to addiction treatment facilities are generally made for individuals who are seeking treatment, not for housing.
Day and Night Treatment Providers with community housing may make referrals for individuals who have completed inpatient treatment, requiring them to step down to an outpatient provider. Many times, clients desire to live in a recovery residence to maintain their sobriety. In that case, it would be appropriate for the Day and Night Treatment Provider to refer to a FARR-certified recovery residence.
When asked about why Amethyst filed for clarification, Pamela Springer, Chief Operating Officer with Amethyst Recovery Center stated, “Amethyst supports FARR’s mission and the State of Florida’s requirement for recovery residence certification. However, thus far, DCF has indicated to Amethyst Recovery Center that it does not require FARR certification for licensed community housing. FARR has stated to us and other providers that Day and Night treatment with community housing must obtain FARR certification or they will be in violation of the law. This is the reason we sought clarification from DCF”.
If history teaches anything, it’s to learn from it. The addiction treatment industry can’t afford to sit idly by and watch. Uniform application of the law is essential to avoid unfair, unreasonable and unintended results. Step up; show up. Register for FREE: https://attendee.gotowebinar.com/register/4977722626987986435 and stand up for your rights under Florida law.
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.”
Effective July 1, 2018, Florida’s recent legislation SB 622 repeals the entirety of Chapter 483, Part I of the Florida statutes, and removes the state licensure requirement for clinical laboratories operating in-state and out-of-state. Section 97 of SB 622, approved by the Governor on March 19, 2018, repeals the entirety of Chapter 483, Part I of the Florida statutes, and so eliminates section 59A-7.024(1).
Many health policy experts are betting on the expanded role of telemedicine as an essential cost-saving, quality (and access) enhancing tool. Yet legal and policy issues have dogged the development of useful telemedicine guidelines, making it difficult to know what’s ok and what’s not. What sort of licensure is required for physicians practicing telemedicine? When is the physician “practicing medicine” vs. “merely consulting?” When is a physician patient relationship established? Is one even necessary? The newly developed model policy developed by the Federation of State Medical Boards should help guide states in developing specific telemedicine standards.
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.