Category Archives: Legislative Updates

SHOOT, READY, AIM: Palm Beach County’s Blind Shot at the Addiction Treatment Industry

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addiction treatment industryBy: Jeff Cohen

We should all be afraid when there is a “war” declared on anything in our culture because it usually means the complex will be simplified, the innocent will be presumed guilty, details will be ignored and the baby will be thrown out with the bathwater.  Nowhere is that more apparent than the current War on Sober Homes in Palm Beach County.

When we read the stories published by the Palm Beach Post, we learn things like–

  • It is illegal for a sober home to receive payment from an addiction treatment facility for providing so called “case management” services;
  • Addiction treatment providers unethically bill thousands of dollars for urine tests that could be provided for pennies via a cup for sale at Walgreens; and
  • The Patient Brokering Act, a state criminal law, is being broken left and right by sober homes and addiction treatment providers.

Hooey!  It’s completely misleading.  Here’s why:

Case Management Issue.  The arrangement reported In the Post and described in charging documents describes a business arrangement where sober homes are paid by state licensed addiction treatment providers for helping addicts along their path of recovery.  Addiction treatment sees these patients maybe 20 hours a week.  Where are they the rest of the time?  What are they doing?  Addicts seeking treatment often have soft life skills from being off the grid, are often receiving assistance from supportive staff at sober homes who help them get on their feet.  They often come into treatment with no clothes, no money, no food, no job skills and a whole host of medical and psycho social needs.  And addiction treatment facilities want (and sometimes pay for) sober home staff to serve a function in the continuum of care, sometimes want to give them food cards, clothing, cigarettes and whatever they need to accept treatment.  And our sole focus is to do what, focus our regulatory attention on a business relationship that may exist in the treatment industry?  Continue reading →

PAs and ARNPs and Prescribing Controlled Substances

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ARNP controlled substancesBy: Jacqueline Bain

For many years, medical providers and regulators have wrestled with whether Advance Registered Nurse Practitioners (“ARNPs”) and Physician Assistants (“PAs”) should be able to prescribe controlled substances.  This past legislative session, several bills were signed into law allowing ARNPs and PAs to prescribe controlled substances subject to several limitations and restrictions. This article will set forth a broad overview of the bills. However, if your practice intends to use ARNPs or PAs to prescribe controlled substances, we strongly recommend that each practitioner is educated about the boundaries set forth in the new law. For instance, there are restrictions on prescribing certain controlled substances in certain circumstances, prescribing controlled substances within a pain management clinic, and prescribing controlled substances for persons under age 18. It is important that all practitioners are properly educated prior to engaging in prescribing or dispensing any controlled substances.

Advance Registered Nurse Practitioners

ARNPs may prescribe or dispense Schedule II, III or IV controlled substances if they have graduated from a program leading to a master’s or doctoral degree in a clinical nursing specialty area with training in specialized skills and have completed 3 hours of continuing education on the safe and effective prescription of controlled substances. ARNPs must limit their prescriptions of Schedule II controlled substances to a 7-day supply. However, this restriction does not apply to psychiatric ARNPs who are prescribing psychiatric medications. Continue reading →

T’was the night before the First Tuesday after the First Monday in March, and all through the House (and the Senate…)

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FLBy: Dave Davidson

It’s that time of year.  People are scrambling around, deciding what they want to give and what they want to get.  Brand new packages are being wrapped up and filed away.  Excitement and tension fill the air. Everyone can’t wait for the big day; but in this season that big day doesn’t happen until the first Tuesday after the first Monday in March.  But it’s never too early to start getting ready, right?  In fact, the Florida Legislature is currently in session, drafting and filing bills that the sponsors hope will be considered in March and will become law in 2016.  And as usual, health care is on a lot of legislative wish lists.  Although all of these bills are subject to significant revision, and some may never make it out of a subcommittee, here’s a sneak peek of some of the proposed health care legislation (without editorial – for now).

Scope of Practice Expansion

Three categories of health care professionals may see significant expansion of the scope of their practice.

Both Advanced Registered Nurse Practitioners and Physician Assistants would gain the right to prescribe controlled substances pursuant to Senate Bill 676.  Most of the details about specific medications and dosages is left to an administrative committee, but the bill seems to anticipate broad authority.  The bill also adds references to ARNPs and PAs throughout the Florida Statutes, indicating a willingness to accept these professionals into a significant role in the delivery of care.  Additionally, SB 572 would add PAs and ARNPs to the list of providers who can certify that an individual meets Baker Act criteria to justify a patient’s involuntarily confinement for mental health reasons. Continue reading →

Medicare Physician Fee Schedule Full of Surprises

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Bill Tracking SpyglassBy: Jeff Cohen

When new healthcare regs come out, we all get excited.  “What sort of nuggets will I find that could be useful?”  Sometimes the regs have useful things and sometimes, they’re just disappointing and frustrating.  The proposed changes to the 2016 Medicare Physician Fee Schedule are a mixed bag.  Allow me to illustrate:

The incident to rules may be changed to require only the ordering physician to supervise the performance of the service.  Currently, any physician in a group practice could supervise the performance of an incident to service (which allows the practice to bill for the service as though it had been performed by the ordering physician);

Qualified telemedicine services that are furnished via an interactive telecom system can be furnished by a physician or authorized practitioner for an additional list of services, including CRNAs.  This is a big change that expands the list of authorized providers;

The feds propose to characterize certain Stark Law violations as “technical,” which means they pose no financial risk to the Medicare program.  Examples include unsigned or expired agreements; Continue reading →

Florida 2015 Legislature Weighs in on Key Issues

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florida-legislature1The 2015 Florida legislative session was especially dynamic in terms of changes that will impact the state’s physicians and other healthcare professionals.  These changes include:

Vaccinations.  Expansion of vaccine administration by registered pharmacist interns who have completed at least 20 hours of coursework and who are directly supervised by a pharmacist (CS/HB 279);

Health care surrogates.  Clarification of the laws pertaining to healthcare surrogates, which includes expansion of their scope of authority, their authority to act on behalf of a minor, and great specificity as it relates to (a) specifying one’s primary physician in a durable power of attorney, and (b) authorizing a surrogate to act on behalf of a person who is not incapacitated (CS/CS/CSHB 889);

Experimental treatments for terminally ill patients.  Enactment of the “Right to Try Act.”  Allows for use of an “investigational drug, biological product, or device” by a terminally ill patient’s physician (confirmed by a second physician).  The licensure of physicians who follow the new is protected.  While the hold harmless issue (as between physician and patient) is not addressed, one would expect treating physicians concerned with liability to the patient to provide releases (CS/CS/HB 269);

Pharmacists right to clinical lab services.  Requires a clinical lab to make services available to consulting pharmacists and doctors of pharmacy (CS/CS/HB 655);

State HME licensure for selling/renting TENS units.  Exempting from the state HME licensure requirement M.D.s, D.O.s and chiropractors who sell or rent electrostim medical equipment or supplies to their patients (HB 1305).

Florida Recovery Residences on the Chopping Block

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gavelTwo separate legislative proposals are aimed to tighten up the sober home industry.  The Bills follow on the heels of legislation proposed last year, which did not become law.  We have a couple weeks left till the Legislative session ends (May 1st), after which time we will see what regulation made its way through the process.  Until then, it’s important to have an idea of what is on the horizon.

Committee Substitute for House Bill 21 and Committee Substitute for Senate Bill 326 contain the following interesting features—

Creates “voluntary” certification for recovery residences;

A. Specifies the requirement of a “recovery residence administrator;”

B. Specifies that the credentialing entity of both the recovery residence and the recovery residence administrator will be a nonprofit organization (not necessarily one that is tax exempt) that “develops, administers professional, facility, or organization certification programs according to applicable nationally recognized certification or psychometric standards,” and requires the credentialing entity to:

  • Establish the recovery residence certification requirements. Interestingly, the Legislature, which states that those in recovery are vulnerable and need to be protected, is offloading to an unspecified nonprofit organization (which anyone can form in five minutes) the responsibility for developing certification requirements;
  • Establish procedures to, among other things, to monitor, inspect and insure compliance with the certification requirements established by this unspecified nonprofit organization entrusted by the state of Florida with this responsibility;
  • Require recovery residences (who are volunteering to be regulated) to submit documents such as job descriptions, drug testing procedures and requirements, to be managed by a “certified recovery residence administrator.”

The Bill also states that a recovery residence cannot be certified if an owner, director or CFO plead guilty, no contest or was found guilty of certain offenses.  Moreover, the non-governmental, not for profit certifying body has authority to suspend or revoke a certification if the entity determines the residence isn’t complying with the law.  No due process is required.  Oh, and finally, as of July 1, 2016, a provider licensed under Chapter 397 may not refer a patient (current or discharged) to a recovery residence unless the residence, which is not required to be certified, actually becomes certified, making the voluntary certification requirement, ummm….mandatory! Continue reading →

The Next Passenger on the Health Train: Physician Assistants

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fl legBy: Jackie Bain

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:  Continue reading →

Physicians & Nurses in for a Long Ride on the Health Train

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npsBy: Jackie Bain

Nearly half of U.S. States have already expanded the scope of nursing practice and several more are analyzing whether it is appropriate.  The debate between physicians and nurses regarding how much autonomy a nurse should be given is a political hotbed that will likely be revisited by the legislature in the near future.  Until that time, the Board of Medicine and the Board of Nursing will quietly continue to enforce the present requirements. Here’s how they stand today:

Under Florida’s current laws, in addition to the practice of professional nursing, an advanced registered nurse practitioner (“ARNP”) may perform acts of medical diagnosis, treatment and prescription. However, for the most part, such acts must be performed under the general supervision of a physician.  The nature of such a supervisory relationship should be identified in a protocol which identifies the medical acts to be performed and the conditions for their performance. Continue reading →

Medical Marijuana in Florida: One Big Pot Hole

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pot hole article

By: Jeff Cohen

“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. Continue reading →

Phoning It In – Florida’s Brand New Telemedicine Law

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??????????By: Jackie Bain

Until recently, the State of Florida has successfully avoided regulating telemedicine to account for advancements in technology. In 2003, the State issued standards for telemedicine prescribing practice for medical doctors and doctors of osteopathy, but has not formally revisited its position in light of increasingly common telemedicine practice in several states – until now.

Florida’s forestalling has officially come to an end.  The State recently enacted new physician standards for telemedicine practice, and the State legislature is presently considering further regulation.  These new standards do not impinge upon the prior standards for telemedicine prescribing practice, but are issued in conjunction to it.  Continue reading →