COVID-19 has accelerated the already growing area of healthcare temporary staffing. Many large healthcare companies face so many uncertainties today, especially from a revenue perspective, that they are increasingly turning to temporary staffing to provide flexibility from an employment perspective. While this is good news for the healthcare temporary staffing industry, it does highlight the growing list of legal issues that staffing agencies currently and/or shortly will face.
The latest case of GEICO against a string of Tampa based diagnostic imaging centers and medical practices hinges in part of the duties actually performed by medical directors. The healthcare clinic defendant claimed an exemption from the state Health Care Clinic Licensure (HCCL) requirement because it was physician owned.
Normally, one would think the exemption is established simply due to physician ownership. Not so here, GEICO alleged, since the clinic owner could not have possibly performed all of the state mandated duties under the HCCL law. While it’s true that a physician owned entity may be exempt from the HCCL law, one of the owners still must supervise “the business activities and [be] legally responsible for the entity’s compliance with all state and federal laws….” Similarly, entities for which HCCL licensure is required, the imaging centers in the GEICO case, have to appoint medical directors who actually perform the duties required by state law. Merely appointing them will not get the job done! And the duties are broad and very specific, including such things as conducting “systematic review of clinic billings to ensure…” they’re not illegal or fraudulent.
For the first time ever, the U.S. Supreme Court is hearing a case that may determine the future of pharmacy for years to come. In Rutledge v. PCMA, which originated in Arkansas, the Court has been asked to decide if states can regulate the controversial business practices of pharmacy benefit managers. Oral arguments will be heard Oct. 6 in this potentially landmark case. The American Pharmacists Association joined several other pharmacy organizations in filing an amicus brief, submitting arguments to support the state of Arkansas
The state of Arkansas passed a law to regulate pharmacy benefit managers (PBMs) when pharmacists began sounding the alarm about slashed reimbursement rates. The law prohibited PBMs from reimbursing local pharmacies at a lower rate than what the pharmacy paid to fill the prescription.
PCMA argues that the Federal Employee Retirement Income Security Act (ERISA) preempts the state law that regulates PBMs. PCMA challenged the Arkansas law in court, and the case made its way to the Supreme Court, where it was originally scheduled to be heard on April 27, 2020.
APhA and pharmacy associations from almost every state disagree with PCMA and support the state regulation of PBMs.
Every commercial real estate transaction has an ideal timeframe to begin the process. Most healthcare professionals understand that opening a new office or relocating an office doesn’t happen overnight, but the majority of professionals are not aware of the ideal timeframes for each type of transaction. Different types of problems arise when starting a transaction too early or too late, and both need to be avoided.
If you start the process too early, it creates a scenario where you spend your valuable time looking at properties and evaluating options, working with lenders and other members of your team, only to find out the landlords or sellers won’t negotiate with you yet. Many landlords and sellers won’t take their spaces off the market for extended periods of time while waiting for the tenant or buyer to be ready to transact, because there is too much time before the transaction will actually take place.
Or if they do negotiate, they won’t be willing to offer you even close to their best terms since they are going to lose income on holding a space vacant for an extended period of time. On the other hand, if they will put forth reasonable terms, it is predicated upon you moving forward immediately, which can leave you stuck paying for a space you can’t occupy for a period of time or paying unnecessary rent on your former space if you leave early.
Thinking about joining an integrated or group practice? The average employment contract exceeds twenty pages, not including exhibits. While some parts might seem simple and non-legalistic, many simply do not contemplate important terms that have serious impacts on Acupuncturists daily lives. An employment contract is the most significant financial decision of an Acupuncturists lifetime. The same can be said for each subsequent contract, which means that understanding, and negotiating, your contract is the most valuable investment you can make prior to entering into a contract.
To understand what’s in your employment contract, simply read it over a few times. To understand not only how those terms affect you, but also what isn’t in your contract, hire an experienced health care lawyer. While it’s important to understand what is in your employment contract, it’s equally as important to know what is missing from the contract and what to ask in regards to what is included. The below list considers terms that are important both during and after employment.
The following are nine items you should consider including in or asking about your contract:
CMS has announced that it will resume Medicare Fee-For-Service (FFS) medical reviews August 3, 2020 regardless of the status of the COVID-19 public health emergency. These audits have been suspended since March 30 as a result of the crisis and applied to prepayment reviews and post-payment reviews conducted by Medicare Administrative Contractors (MAC).
Investing in a healthcare related business involves significant time and money. Building a brand takes even more and is extremely important in today’s society. Having the ability to build a recognizable brand, scale, and potentially sell, is the goal of many healthcare business entrepreneurs. With the ever-booming impact of social media, online advertising, and online reviews, healthcare businesses seek to engage at a higher degree than ever before to attract new patients, retain current patients, and establish themselves as experts in their respective fields.
Building a brand is part of it, while protecting that brand is far more important. A well-recognized word or logo can be worth everything to your business. Obtaining ownership and protection over a name or mark is a fairly simply task with significant rewards. Trademarks are the names, slogans, tag lines, and/or logos that identify and represent your business, its services, and mission to the public, and are the foundation for the business’s overall branding and marketing. Trademarks can also be used to protect your business in a specific area or a specific area of expertise. If you do not protect your brand, a competitor could use it (or something similar, which could confuse the public and your patients and therefore potentially draw business away from your brand.
In the beginning of June, 2020, the Department of Justice (“DOJ”) revised its Evaluation of Corporate Compliance Programs Guidance Document. The Document is designed to assist prosecutors in making informed decisions as to whether, and to what extent, the company’s compliance program is effectivefor purposes of determining, when a compliance violation has occurred, the appropriate form of any resolution or prosecution and monetary penalty. It also guides a prosecutor as to the company’s compliance obligations contained in any criminal resolution. The Document has been revised on three occasions since 2017, telegraphing the DOJ’s intent to prosecute those businesses without compliance plans, or without effective compliance plans, more harshly than those taking steps to identify and remedy risks.
A healthcare business’ failure to have in place a compliance program designed to detect and respond to potential fraud and security risks places it at a serious risk of civil and criminal liability. When a compliance issue is investigated, charged and resolved, DOJ prosecutors are instructed to consider whether the business has invested in and improved its corporate compliance program and internal controls systems. They must also determine whether those improvements have been tested to demonstrate that they would prevent or detect similar misconduct in the future. According to the DOJ, there are three fundamental questions that a prosecutor should ask when determining whether a business’ compliance plan is sound:
There are numerous COVID-19 grants available from the United States Government, spanning the addiction treatment industry to assisted living, hospitals and providers. There’s money for workplace modernization and for telehealth funding. But how does one keep it all straight and avoid missing out? Join Florida Healthcare Law Firm Attorney Steven Boyne for this informative webinar designed to share an overview and strategy for determining how best your healthcare business can be supported during this unprecedented public health emergency.
When COVID-19 passes and the world begins to return to normal, you can be guaranteed that many of your old “friends” will come to visit you. To minimize future liability, pain and time, you should be preparing today for tomorrow’s visitors:
The Lawyers. Lawyers come in many flavors, and can bring good or bad news. Depending on your initial reaction to the pandemic, and your subsequent actions as the panic started to die down you may see three types of lawyers: (1) Those that represent past or present employees who have lost their job or contracted COVID-19; (2) Those that represent patients who claim malpractice based on the care that you did or did not deliver, and also those patients who assert that they contracted COVID-19 at your office; and finally (3) Those that represent creditors or debtors of your practice. The actions you should take today are many and varied and beyond the scope of this overview, however, you should be asking the following questions of yourself: (i) did you file a claim for business interruption despite the fact that your insurance broker said you were wasting your time? (ii) does your malpractice carrier cover you for liability outside of the normal scope of providing care? (iii) are your documenting your actions throughout the pandemic to demonstrate that you were acting reasonably at a time when you did not have all the facts? (iv) did you look at your business insurance policies for coverage for employee claims, or workers comp claims, or OSHA claims? (v) did you research what other similarly situated companies are doing, as you will most likely be held to the same standards? (vi) did you follow guidance from State and Federal entities? and (vii) did you provide notice during the pandemic to debtors or other parties who have breached their obligations?
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.