Health Law

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Noncompete Agreement Tips and Mistakes to Avoid After COVID-19

by admin on March 31, 2020 No comments

noncompete agreement tips and mistakes to avoid during covid-19By: Jeff Cohen

COVID is proving to be so burdensome on employers that we are seeing lay-offs and furloughs all over the country. As the virus curve bends back in a positive direction and physician and patient concerns for safety wane, patients will stream back to office. But what happens to the laid off (or furloughed) employees and contractors with non-competes? Will they come back or will they have moved on, possibly in a way that violates their noncompetes? And will a court think a noncompete has been violated when an employee or contractor was let go and there is no specific provision in their written contract that allows the employer to immediately let someone go without notice due to this type of situation? How will the COVID based lay-offs and furlough affect noncompetes? The short answer is we don’t yet know, but widespread lay-offs and furloughs may result in a flood of cases being filed because (1) many have been let go, (2) there likely isn’t a provision in their contract with the employer that specifically authorizes that sort of termination, and (3) a contract’s “breach” (e.g. no contract based allowance for the prompt termination) is traditionally a defense to an action to enforce a noncompete.

The COVID Issue

Though there is an exception for unusual specialties or where there is essentially a community need, noncompetition covenants are generally enforceable in Florida with respect to doctors and other healthcare professionals. Many people think doctors in particular can’t be restricted from practicing medicine under any circumstances. That is just not true.

Getting to the bone of the issue, noncompetes are enforceable in Florida if:

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How can you transform your business to be prepared for future situations like COVID-19?

by admin on March 24, 2020 No comments

setting up your office to work remotely during a crisisJoin Florida Healthcare Law Firm Attorney Chase Howard on our free webinar titled “How can you transform your business to be prepared for future situations like COVID-19?”

Faced with the reality of remote operation, we’ll talk about how your business prepare to thrive in a similar scenario in the future.

  • What to do with remote staff when it comes to contracts, operations and patient privacy.
  • How do Federal regulations impact telework.
  • Could expanded telehealth laws ease the transition to remote care in a future crisis.

Presenter: Chase Howard, Esq. is an Attorney at the Florida Healthcare Law Firm and has focused his legal practice on health law, medical malpractice defense, business law, and contracts. He deploys crucial skills gained through hands-on business experience in the medical tech world to service clientele such as medical spas, medical practices, medical technology businesses, healthcare business entities, physicians, chiropractors, and dentists. Chase’s experience working in University of Miami Health System’s Risk Management Department provided him with a strong understanding of legal compliance in the healthcare world as well as experience in liability assessment, prevention and defense. With his multi-specialty background, Chase’s practice focuses on all aspects of transactional Health Law, MedSpa Start-up and consulting, general business law, and MedTech.

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CMS Rolls Out a General Provider Telehealth and Telemedicine Tool Kit

by admin on March 23, 2020 No comments

Information from CMS for medical providers on telehealth and telemedicineBy: Susan St. John

CMS has rolled out a telehealth/telemedicine tool kit to assist medical professionals with health care delivery during the current COVID-19 public health emergency.

The toolkit contains information and links concerning:

 

  • 1135 Waivers – allows the Secretary of HHS to temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure sufficient health care services and items are available to meet the needs of individuals enrolled in Social Security Act programs during the emergency and that providers who provide services in good faith can be reimbursed and exempted from sanctions (provided there is no determination of fraud and abuse). 1135 waiver or modifications include:
    • Conditions of participation and other certification requirements;
    • Program participation and similar requirements;
    • Preapproval requirements;
    • State licensing requirements where services are rendered as long as the provider has equivalent licensing in another State (for Medicare, Medicaid, CHIP reimbursement only; State licensing still controls whether a non-Federal provider may provide services in a state he/she is not licensed in);
    • EMTALA sanctions for redirection for medical screening, as long as redirection is not the result of discrimination on the basis of a patient’s source of payment or ability to pay;
    • Stark self-referral sanctions;
    • Adjustment (not waiver) to performance deadlines and timetables;
    • Limitations on payment to permit Medicare enrollees to use out of network providers in an emergency situation.
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Governor DeSantis’ order on COVID-19 and Non-essential Elective Medical Procedures

by admin on March 23, 2020 No comments

florida governor's orders for healthcare businesses during corona virus outbreakBy: Jeff Cohen

Florida’s Governor passed an Executive Order Friday which essentially shuts down all elective medical treatment.  The Order (20-72) only allows “non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient’s immediate health, safety, or wellbeing at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition.”

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Webinar | How can you transform your business to be prepared for future situations like COVID-19?

by admin on March 21, 2020 No comments

prepare your business to be fully remote online during a crisis like covid-19Join Florida Healthcare Law Firm Attorney Chase Howard on our free webinar titled “How can you transform your business to be prepared for future situations like COVID-19?”

Faced with the reality of remote operation, we’ll talk about how your business prepare to thrive in a similar scenario in the future.

  • What to do with remote staff when it comes to contracts, operations and patient privacy.
  • How do Federal regulations impact telework.
  • Could expanded telehealth laws ease the transition to remote care in a future crisis.

Presenter: Chase Howard, Esq. is an Attorney at the Florida Healthcare Law Firm and has focused his legal practice on health law, medical malpractice defense, business law, and contracts. He deploys crucial skills gained through hands-on business experience in the medical tech world to service clientele such as medical spas, medical practices, medical technology businesses, healthcare business entities, physicians, chiropractors, and dentists. Chase’s experience working in University of Miami Health System’s Risk Management Department provided him with a strong understanding of legal compliance in the healthcare world as well as experience in liability assessment, prevention and defense. With his multi-specialty background, Chase’s practice focuses on all aspects of transactional Health Law, MedSpa Start-up and consulting, general business law, and MedTech.

Webinar to prepare for future situations like covid-19

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A Telehealth Break for Medicare Patients and Providers

by admin on March 17, 2020 No comments

new medicare laws for telehealth related to corona virusBy: David J. Davidson

Up until now, Medicare has been fairly structured in how telehealth services are reimbursed. Medicare would pay for telehealth services only if certain, very narrow criteria were met. These rules covered the patient, the patient’s location, the provider, the types of services rendered, the telehealth equipment used and the way the services are coded. Those rules can now be relaxed under recent federal legislation.

On March 6, 2020, President Trump signed the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 into law. That law relaxes the current Medicare criteria, in order to expand the use of telehealth as a resource against COVID-19. Pursuant to this law, the Secretary of HHS has the authority to waive the “site” requirements for telehealth services provided to Medicare beneficiaries who are located in an identified “Emergency Area” during an “Emergency Period.” Since the whole country is currently is experiencing a public health emergency, as declared by both the President and the Secretary of HHS, the Emergency Period and Emergency Area requirements are met on a nation-wide basis.

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Webinar | Boosting Business: Advising Physicians on Third Party Relationships

by admin on March 13, 2020 No comments

boosting business, advising physicians on third party relationshipsThe Florida Healthcare Law Firm is hosting a free webinar for physicians on appropriate third party relationships. With shrinking reimbursement rates, physicians are increasingly turning to alternative methods and innovative physician relationships to increase revenue. However, not every opportunity is compliant with Federal and State kickback laws, which are designed to prevent overutilization of services.

This course aims to help attendees recognize and advise physicians about relationships designed to compensate for more than just patient care, including, but not limited to:

1. White Coat Marketing;

2. Contractual Joint Ventures;

3. Relationships with Pharmaceutical and DME Companies.

It will use recent trends in the market to reinforce its objectives. This free webinar is for physicians and healthcare providers full of valuable information.All you have to do is register here, put it on your calendar and then click on the link emailed to you on March 25th!

Physician relationships of any kind should be approached carefully by a highly qualified healthcare attorney. Nearly every aspect of healthcare is governed by a complex array of regulations and remaining compliant when drafting a contractual relationship of any kind is no easy task.

 

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Coronavirus Call to Action

by admin on March 10, 2020 No comments

Corona virus call to action. Blog post by healthcare attorney David J. Davidson By: David J. Davidson

On March 4, 2020, the Centers for Medicare & Medicaid Services (CMS) issued three Quality, Safety & Oversight Memoranda, all concerning the Coronavirus. According to these documents, effective immediately, the government will begin to focus its inspections exclusively on issues related to infection control and other serious health and safety threats. According to CMS Administrator Seema Verma, the memoranda should be seen as a “call to action across the healthcare system.” The goal of the guidance given in the memoranda is to continue to keep Americans safe and prevent the spread of the Coronavirus.

The first memorandum resets the focus of governmental surveys. The order of priority for government surveys will now be:

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The Risk Of Not Paying Attention to HIPAA Violations

by admin on October 30, 2019 No comments

HIPAA, HIPAA violations, HIPAA compliance

By Jacqueline Bain

On October 23, 2019, the U.S. Department of Health and Human Services has imposed a civil money penalty of over $2 million against Jackson Health System in Florida for repeated HIPAA violations.

The HIPAA violations mentioned in the HHS Press Release include:
1-Loss of paper patient records in December 2012;
2-Loss of additional paper patient records in January 2013;
3-A media report containing patient information (a photo shared on social media);
4-Employees accessing the information of one patient without a job related purpose;
5- An employee’s improper access and sale of patient records in 2011.

“OCR’s investigation revealed a HIPAA compliance program that had been in disarray for a number of years,” said OCR Director Roger Severino. The state of the compliance program allowed for the failure of several HIPAA requirements, including provision of timely and accurate HIPAA breach notifications, performance of regular risk assessments, investigation of identified risks, audits of system activity records, and imposing appropriate restrictions on workforce members’ access to patient information. The government’s final determination is available here.

When a HIPAA breach is discovered and reported, the government will often take the time to review a covered entity’s history of compliance or non-compliance. This may include an investigation into prior issues, effectiveness of policies and procedures, and employee issues. Overlooking one suspected breach may result in the imposition of sanctions on any later breach. This is why it’s so important for a healthcare business to understand its HIPAA obligations and take them seriously.

When was the last time your business conducted a security risk assessment to understand its potential risk areas for security breaches? If you’ve never had one, or haven’t had one recently, the time is now to conduct one. “When was your last security risk assessment?” is often the first thing that the government will ask in response to a breach.

Federal fines for noncompliance with HIPAA are based on the level of negligence perceived by the Federal government at the time of the breach. Fines and penalties range from $100 to $50,000 per violation (or per record), with a maximum penalty of $1.5 million. Simply put, your healthcare business can’t afford to bury its head and hope that it won’t be hit.

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Two Big Changes to Florida’s Patient Brokering Act Affect All Healthcare Facilities and Providers

by admin on August 14, 2019 No comments

patient brokering act anti kickback healthcare law health lawHas your attorney ever told you to do your best to comply with certain safe harbors to the Federal Anti-Kickback Statute, and you’ll be likely to survive scrutiny under the Florida Patient Brokering Act (the PBA)? If you’ve heard that, it’s time to re-examine that relationship. In the last month, the Patient Brokering Act has been amended, and then interpreted by a court of law in a way that affects all healthcare providers.

The Patient Brokering Act has been used in recent years to prosecute abuses in the addiction treatment industry. Other healthcare providers subject to the act have largely been uninvolved in these prosecutions. However, the PBA has been remolded 4 times in the past 5 years as a means to tailor it to allow for prosecutions of bad actors in healthcare, including addiction treatment. One item should be made clear: the PBA applies to any facility at all that is licensed by the Agency for Healthcare Administration (AHCA) or practitioner licensed by the Department of Health (DOH), including physicians, surgery centers, home health agencies, skilled nursing facilities, hospitals, DME providers, diagnostic imaging facilities, clinical laboratories, pharmacies and many other. During the legislative process, barely any healthcare industry representatives (from any provider group) showed up to any legislative workshops or produced counterbalancing input or language proposals that reflected a broader perspective.

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