Health Law

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

Physician Employment Contracts: Hidden Terms

by admin on January 11, 2019 No comments

physician employment contractBy: David Davidson

Over the past few years, it seems like physician employment agreements are getting shorter and shorter.  While I applaud all efforts towards efficiency and economy, you should not always take those documents at face value.  For example, I recently reviewed a one page employment contract for a client.  That single page basically said, “We are hiring you as our employee for a term of one year, with an annual salary of $$$.”

At first glance, the simplicity of that document might seem refreshing.  That’s especially true if you’re worried about how much time it’s going to take for your lawyer to get through it!  My client’s second glance revealed a multitude of unanswered (and essential) questions.  There was no mention of expected duties, schedules, standards, renewals, terminations, insurance, benefits, vacation time, sick leave, CME, etc. in the employment contract  However, when we reviewed the contract together, we discovered that although those points were not even referenced on that single page, they were still legally, “in there.”

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Direct Primary Care Agreements: How it Works and What to Consider

by admin on October 24, 2018 No comments

direct primary care agreementsAttorneys Susan St. John and Michael Silverman of the Florida Healthcare Law Firm will present this live lunch n’ learn webinar for providers interested in learning more about the direct patient care model. They will discuss the recent legislative updates that have brought this issue to the forefront in Florida.

Further reading per AAFP.org – The direct primary care (DPC) model gives providers a meaningful alternative to fee-for-service insurance billing, typically by charging patients a monthly, quarterly, or annual fee (i.e., a retainer) that covers all or most primary care services including clinical, laboratory, and consultative services, and care coordination and comprehensive care management. Because some services are not covered by a retainer, DPC practices often suggest that patients acquire a high-deductible wraparound policy to cover emergencies. Direct primary care and concierge care are not synonymous. In practices offering concierge care, the patient typically pays a high retainer fee in addition to insurance premiums and other plan obligations (e.g., copays, out-of-pocket expenditures), and the practice continues to bill the patient’s insurance carrier.

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A New Perspective from CMS? Medicare, Stark Law and Whistleblower Changes on Deck

by admin on October 2, 2018 No comments

medicare stark lawBy: Dave Davidson

Over the past several months, the Centers for Medicare & Medicaid Services (CMS) has taken a number of steps that show an awareness of the regulatory burden placed upon participants in the government’s health care programs, and even some willingness to consider reducing those burdens.  While it remains to be seen whether the recent proposals will have measurable results, the following actions can still be viewed with guarded optimism.

Proposed Changes to Medicare

In July, 2018, CMS proposed significant changes to Medicare, to be included in rules that take effect in 2019.  These changes cover physician fee schedules, streamlining Evaluation & Management (E&M) billing, advancing “virtual care,” decreasing drug costs, revising the MIPS program and establishing the MAQI demonstration project.  The agency also asked for comments on price transparency issues.

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adminA New Perspective from CMS? Medicare, Stark Law and Whistleblower Changes on Deck

State Court Ruling on Patient Brokering Act Threatens Healthcare Facilities and Providers

by admin on July 25, 2018 No comments

patient brokering actA 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.

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Latest Developments: Medicare Appeal Backlog Litigation

by admin on July 3, 2018 No comments

medicare appealBy: Matt Fischer

In 2012, the American Hospital Association (AHA) along with three member hospitals filed a lawsuit against the U.S. Department of Health and Human Services (HHS) for the agency’s failure to meet the 90 day decision requirement at the Administrative Law Judge (ALJ) level known as the Office of Medicare Hearings and Appeals (OMHA).  Through the years, the case has moved back and forth between a federal district court and federal appeals court in the District of Columbia.  Most recently in March, a federal district court judge ordered the AHA to expand on its suggestions it has made over the course of its litigation for how HHS can clear the ever-growing backlog and additionally, explain why the current procedures are insufficient.

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Another FARR Flaw: Get the Facts

by admin on June 21, 2018 No comments

FARR certificationAttorneys 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.

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Clinical Laboratory Licensure: Florida Repeals State Licensure

by admin on June 5, 2018 No comments

clinical laboratory lawBy: Karina Gonzalez

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).

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Complicated Relationships: Medical Director Contract, Marketing Agreement, Healthcare Consulting

by admin on May 16, 2018 No comments

medical director contractBy: Jacqueline Bain

Healthcare providers often have more than one relationship with each other. For instance, a physician may be employed by a hospital and also provide that hospital with medical director services. Or a healthcare consultant may also be a healthcare provider’s landlord. Oftentimes, these types of relationships are each memorialized in one or several contracts between the parties. And while, on their face, these contracts may seem to be compliant with applicable healthcare laws, when examined together, compliance and other contract issues may arise.

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adminComplicated Relationships: Medical Director Contract, Marketing Agreement, Healthcare Consulting