Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.
HIPAA is a federal law designed for safe disclosure of patient’s protected health information. The news headlines showcase giant penalties for violations. However, Florida health care providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act. So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.
So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure? Responses vary based on the situation presented, but below is a good jumping off point: Continue reading →
Across the healthcare industry, providers and healthcare businesses are consistently faced with the decision of whether to employ or contract with their workers. Whether it’s a physician working with a group practice, or a marketer on behalf of a healthcare service, correctly structuring relationships between healthcare businesses and their workers is important. For tax reasons, many workers strongly prefer to enter into independent contractor relationships. However, simply calling oneself an independent contractor is not enough to solidify the relationship. Many times, workers who call themselves independent contractors are actually employees in the minds of the government. And sometimes, so-called “employees” with several part-time positions are actually viewed as independent contractors.
On July 15, 2015 the Administrator of the Department of Labor’s Wage and Hour Division (WHD) provided additional guidance regarding the application of the standards for determining who is an employee under the Fair Labor Standards Act (FLSA). The goal of the guidance is to help the regulated community in classifying workers and decreasing misclassification. The Administrator’s Interpretation reviews the pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA. The Administrator’s Interpretation then addresses each of the factors of the “economic realities test”.
According to the Administrator, when determining whether a worker is an employee or independent contractor, the application of the economic realities factors should be guided by the FLSA’s statutory directive that the scope of the employment is very broad. The FLSA’s definitions establish the scope of the employment relationship under the Act and provide the basis for distinguishing between employees and independent contractor.
The Supreme Court and Circuit Court of Appeals have developed a multi-factorial “economic realities” test to make the determination whether a worker is an employee or an independent contractor under the FLSA. The test focuses on whether the worker is economically dependent on the employer or in business for him or herself. The factors include: Continue reading →
The beginning of a new year is a great time to evaluate your medical practice and determine ways to protect its healthy growth for the future. The time, effort and dedication that it may take to build a successful practice may be quickly undermined without certain contractual protections in place. As you seek to establish or expand your practice, it is essential to protect your hard earned efforts from employees and consultants taking a portion of your patient base, employees and valuable proprietary business processes to compete against you.
One of the ways physicians seek to protect the investment that they have made in their practice is through the use of restrictive covenants. Restrictive covenant is an all-inclusive term used to refer to all contractual restrictions upon competitive practices; nonsolicitation; confidential information and use of trade practices. Restrictive covenants may be found in a number of documents related to your practice. A restrictive covenant may be found in your practice governing documents, such as the shareholder agreement, the partnership agreement of a partnership or the operating agreement of a limited liability company. A restrictive covenant is often included in an employment contract where it prevents an employee from engaging in certain competitive practices while they are an employee and for a period of time after their employment ends. There may be a restrictive covenant provision in a contract for the sale of a party’s interest in the practice. Continue reading →
H.R. 2914 is a bill filed by Congresswoman Speier that is intended (among other things) to prohibit medical practices providing the following sorts of medical services (“Non-ancillary Services”) to their own patients—
*The technical or professional component of (i) surgical pathology, (ii) cytopathology, (iii) hematology, (iv) blood banking, or (v) pathology consultation and clinical lab interpretation services
*Radiation therapy services and supplies
*Advanced diagnostic imaging studies (which include for instance MR and CT)
Even though the holiday season is long gone Healthcare Providers need to pay attention to the value of gifts they give or receive to avoid violating the Anti Kickback Laws. Providers may not accept any one gift with a value of more than approximately $30.00 or gifts worth more than $350.00 annually. The Government is concerned that gifts may cause billing for unnecessary services or may affect the referral of patients. Providers as well as their employees must not solicit gifts either. When a gift is given or received it must not be based upon either the volume or value of any referrals. Gifts that are given frequently after referrals or after any specific successful referral are red flags for violations of the law. In fact the Sunshine Act now requires pharmaceutical companies and durable medical equipment companies to report gifts to providers with a value over $25.00. Continue reading →
The Stark Regs (1) forbid doctors and their immediate family members from referring their patients to businesses they own which provide “designated health services,” and (2) contains a long list of permitted financial relationships between health care providers. The list of what constitutes a “designated health service” (DHS) includes PT, rehab, diagnostic imaging, clinical lab, DME, and home health. A “physician” means an M.D., D.O., chiropractor, podiatrist, optometrist or dentist. An “immediate family member” is a husband or wife; birth or adoptive parent, child, or sibling; stepparent, stepchild, stepbrother, or stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; grandparent or grandchild; and spouse of a grandparent or grandchild. In short, if you or your family member owns a DHS, don’t refer to it. Unless of course your situation falls within one or more of the gazillion exceptions.
A few key changes from the third set of revisions (so called Stark III) which affect physicians are helpful to keep in mind. For instance, the way fair market value of physician compensation is determined in the Stark II regs has been simplified and now depends on an amorphous consideration of the transaction, its location and other factors. The clear formulas contained in Stark II was dropped and this makes the need for an expert FMV study even more compelling. Continue reading →
When people ask me what I do, I used to say “I’m a transactional health care attorney. I represent health care practitioners in their business deals. I don’t do malpractice.” That response does little to wipe the blank stare off my questioner’s face, and even I have to stifle the urge to yawn. My new and improved response is that “I spend a lot of time advising health care practitioners how they can share fees with people who refer them patients.” Now I get invited to all sorts of cocktail parties !!!
Practitioners split fees with one another for a variety of reasons; and they very often do not realize that a particular arrangement involves a split-fee arrangement, or that split-fee arrangements are often illegal in Florida. The purpose of this article is to provide practitioners with a general overview of the concepts underlying the prohibition against split-fee arrangements in Florida, in the context of three common business arrangements. Continue reading →
On November 30, 2012, the Federal Trade Commission (FTC) issued its interim final “Red Flags Rule” which narrowed the definition of “creditor” in such a way that essentially confirms that most health care service providers are not subject to its requirements.
The Red Flags Rule was originally promulgated in reaction to the perceived risk of identity theft in various transactions involving financial institutions and creditors, and it required them to develop and implement a written identify theft program to combat these risks, including internal processes for identifying “red flags” of identity theft. The application of the Red Flags Rule to health care service providers was controversial since it advanced a counterintuitive notion that a provider who engaged in ordinary course business activities, such as rendering health care services where insurance or other payment would be received later, was a “creditor” by definition, thus was equated with the business of financial institutions and subject to standards more applicable to the relationship between commercial creditors or lenders and their customers.
Under the original rule, any “creditor” was required to establish an identity theft program. The definition included “any person who regularly extends, renews, or continues credit…” The FTC interpreted this expansively to include physicians and other providers who accept insurance as payment or who permit payment plans, where payment in full was not received at the time of service. Thus, if a physician or hospital were to accept a patient’s insurance coverage or bill the balance not covered by insurance to the patient, that was viewed as an extension of credit to the patient which triggered regulatory compliance obligations by the provider. Although the FTC later clarified its position in saying that it applied only to creditors that regularly and in the ordinary course of business advance funds, there was still some ambiguity.
The interim final rule now makes clear that advancing funds does not include what is routine health care services billing and collection activities (such as deferring payment of fees in connection with providing services) and that most service providers are not subject to the rule. Nevertheless, while the interim final rule confirms that most providers are not subject to the Red Flags Rule, entities that collect consumer data should still carefully consider how they collect and use such data. To the extent that they use or provide patient information in connection with credit reporting services, the Red Flags Rule would apply. Further, health care providers remain subject to the HIPAA/HITECH privacy and security rules with respect to all patient identifying information regardless of whether they are subject to the Red Flags Rule.
Many business people involved in some aspect of the recovery business world (e.g. IOPs, PHPs, Detox) are not aware of the punishing laws that apply to their marketing arrangements. Simply paying someone a commission based sales compensation without fully appreciate the applicable laws is dangerous and costly.
Florida laws that pertain to telemedicine are precious few. In fact, there is really only one regulation dead on target, and that requires face to face physician contact with a patient in order to write a prescription. The impact of the hormone replacement therapy (HRT) providers was pretty immediate, but the legal issues related to telemedicine are just not currently addressed in Florida law. Does providing a telemedicine consult create a physician patient relationship? What are the requirements related to the medical records arising out of the consult, and who owns the records? These issues and many more are simply not handled. And yet, if it is true that telemedicine will be an important tool in the effort to both broaden the availability of care while reducing associated costs, we can be sure that Florida law will evolve on these issues. Continue reading →