After more than a year of debate, edits, tabling and lobbying, the Florida Legislature passed multiple bills that would allow advanced practice registered nurses (APRN) to practice independently of physicians, as well as authorize certain pharmacists to test and treat patients for the flu and strep throat, among other conditions.
Prior to passage of these bills, APRNs were required to have some level of physician supervision in order to practice. While in many cases direct supervision is not required, Florida law required that an APRN enter into a supervisory relationship with a Florida licensed physician. Specifically, the providers must draft written protocols regarding scope of practice, as well as provide certain notices to their governing boards and patients. While the requirements vary based on the type of practice, they aren’t difficult to comply with in most cases. Finding a supervising physician outside of that physician’s primary practice, however, might prove to be more difficult than it seems. The requirements also carry certain mileage restrictions, prohibiting supervision outside mile limits based on the level and type of supervision.
The scope of Physician Assistants’ practice is a dynamic and hotly debated area of law which shares many similarities with the nurse supervision issues we covered in a recent article (available here). House Bill 1275 would have also allowed for an expansion in the PA field and was included on the “Health Train” compilation of bills introduced during the Florida legislature’s recent session. As we know nothing on the Train passed before the session ended and though it may gain forward momentum next time, here’ how the laws stand today:
“Shoot, ready, aim” might be the right approach in many situations—like in war or when your kid runs into the street. But the approach never makes much sense in the context of law making. The best law making involves careful analysis, ensuring public protection and basically doing the best for the most (people). The issue of medical marijuana seems, however, to be driven by self interest and seems lacking in balanced and serious concern for the public. Reader caution: this article isn’t intended to subliminally advertise this law firm. It’s just venting, plain and simple.
On August 29, 2013, the Federal Department of Justice issued a memorandum stating it will continue to rely on state and local authorities to address marijuana activity through enforcement of state narcotics laws. Nevertheless, in light of new state laws allowing for possession of a small amounts of marijuana and regulating production, processing and sale of marijuana, the Department designated eight criteria to guide state law enforcement. States must (1) prevent the distribution of marijuana to minors; (2) prevent revenue from the sale of marijuana from flowing to criminal enterprises; (3) prevent the diversion of marijuana from states where it is legal to states where it is illegal; (4) prevent marijuana activity from being used as a cover for the trafficking of other illegal drugs; (5) prevent violence and the use of firearms in the cultivation and distribution of marijuana; (6) prevent drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (7) prevent the growth of marijuana on public lands; and (8) prevent marijuana possession or use on federal property. In the event that the Federal Government determines that States are not adhering to such criteria, the Federal Government reserves its right to challenge State laws. The Feds didn’t say how any of that was to be done. They simply said the states should do that. But Florida has apparently been looking the other way.
When Florida’s legislators meet each year, change is sure to follow. Some of the changes this year include:
Therapeutic Spa Services are now defined under the nursing home law (Chapter 400) as “bathing, nail and hair care services and other similar services related to personal hygiene.” The new law will likely trigger the development of regulations that will affect how such services can be provided to residents of nursing homes and related facilities.
The Florida Health Care Clinic Law (400.990) has been changed to allow exempt “big businesses” from the licensure requirements. Those include—entities that have $250 Million or more in annual sales (if one of the owners is a Florida licensed healthcare professional who is responsible for compliance) and those which employ 50 or more Florida licensed M.D.s or D.O.s who provide services under single tax ID number. These changes may help physician integration moves but also benefit large corporate healthcare providers.
The state anti kickback law (483.245) was expanded to clarify that it is illegal for a clinical lab to provide (in any way at all) personnel to perform “any functions or duties” in a doctor’s office unless the lab and the doctor’s office are owned by the same legal entity. Clinical labs may not, for instance, lease space in doctor’s offices to collect specimens.
Perhaps the most hotly regulated aspect of healthcare lately has been in the area of controlled substance prescription and dispensing. A new law expands the exemption from the controlled substance prescribing standards to certain board eligible doctors (not just board certified ones), to rheumatologists and to doctors who prescribe medically necessary controlled substances to a patient during an inpatient hospital stay. As such, the exemption from the controlled substance prescribing standards—board eligible or certified anesthesiologists, physiatrists, rheumatologists, neurologists or medical specialist who have completed a fellowship in pain medicine; board certified doctors with privileges as a hospital or ASC; doctors who prescribe medical necessary controlled substances to patients during inpatient stays at hospitals.
Imagine this: the Florida Legislature believes that consumers need to be protected from unscrupulous business practices by physicians and facilities (including physicians, hospitals and surgery centers) and will require things like (1) publishing charges with huge signage, and (2) informing consumers how charges compare to hospital imaging center charges. Failure to do so will subject the physicians and the centers to civil fines of $1,000/day is grounds for professional discipline. The Bill also holds insurers responsible for paying for medical services, but not where the provider doesn’t have a contract with the insurer. This leaves out of network providers out in the cold and will mean significant notice requirements being imposed on all providers.
A recent decision out of the 11th Circuit Court of Appeals will help Florida’s tort reform efforts. As part of broad tort reform measures, the Florida Legislature implemented a $1 Million cap on noneconomic damages (e.g. pain and suffering damages). Florida has had a hard road in implementing tort reform measures, which often fall under Florida Supreme Court analysis; and many insiders wondered if the 11th Circuit Court in Atlanta would strike Florida’s cap. Nope!
The case involved the death of a woman following childbirth. The District Court determined her death was caused by the negligence of her medical team, the members of which were U.S. military employees. The plaintiffs were awarded $2 Million in noneconomic damages, but the court reduced it to comply with the $1 Million noneconomic damage cap. On appeal to the 11th Circuit, the plaintiffs argued that the cap violated the state’s equal protection clause; but the court rejected the argument.
Since, however, the court did not address other aspects of the plaintiff’s state constitutional challenge (right of access clause, right to jury trial clause and separation of powers clause), the matter was sent to the Florida Supreme Court for final resolution. The state Supreme Court may take up the case; and if it does, it’ll be important to watch.
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.