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

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

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

??????????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

Regulation Postponed: March 1, 2013 Health Insurance Exchange Notice Delivery Requirement

The Affordable Care Act (ACA) requires employers to provide all new hires and current employees with a written notice about ACA’s health insurance exchanges (Exchanges), effective March 1, 2013.
On Jan. 24, 2013, the Department of Labor (DOL) announced that employers will not be held to the March 1, 2013, deadline. They will not have to comply until final regulations are issued and a final effective date is specified.

The DOL anticipates issuing the regulations in late summer or fall of 2013. The DOL, it its announcement, cites two reasons for the delay.First, the Exchange Notice (Notice) should be coordinated with the educational efforts undertaken by the Department of Health and Human Services (HHS) and with the Internal Revenue Service (IRS) guidance on “minimum value” requirements. Delaying the Notice will achieve that goal. The DOL also cites its intent to provide employers with sufficient time to deliver the Notice at a time that will be meaningful to the employees receiving it. When ready, the DOL will produce a generic Notice which will meet the law’s requirements.

Florida Board of Medicine Says: Take a Pause

Via Florida Board of Medicine – – – The Florida Board of Medicine’s Surgical Care/Quality Assurance Committee has been reviewing Rule 64B8-9.007, Florida Administrative Code – Standards of Practice in an effort to reduce the number of wrong patient, wrong site and/or wrong procedure disciplinary cases. This rule outlines requirements for taking a pause prior to beginning surgery to ensure you have the right patient, the right site and are performing the right surgery as described in the Informed Consent signed by the patient. The Board continues to see disciplinary cases in which the required “pause” is performed but surgery is still performed on the wrong patient, wrong site or the wrong procedure is performed. The Committee met three times and heard public testimony. During that testimony, it was determined the definition of surgery also needed to be clarified. Changes to the rule include:

  • Physicians are required to confirm the patient’s identity, confirm the procedure being performed and confirm the correct surgical site with another healthcare practitioner
  • “Pause” must be performed again if the physician leaves the room at any time during the procedure or surgery
  • Clarification of the definition of surgery

These changes are effective January 29, 2013 and are underlined in the rule language below:

64B8-9.007 Standards of Practice.

The Board of Medicine interprets the standard of care requirement of Section 458.331(1)(t), F.S., and the delegation of duties restrictions of Section 458.331(1)(w), F.S., with regard to surgery as follows:

(1) The ultimate responsibility for diagnosing and treating medical and surgical problems is that of the licensed doctor of medicine or osteopathy who is to perform the procedure. In addition, it is the responsibility of the treating physician or an equivalently trained doctor of medicine or osteopathy or a physician practicing within a Board approved postgraduate training program to explain the procedure to and obtain the informed consent of the patient. It is not necessary, however, that the treating physician obtain or witness the signature of the patient on the written form evidencing informed consent.

(2) This rule is intended to prevent wrong site, wrong side, wrong patient and wrong surgeries/procedures by requiring the team to pause prior to the initiation of the surgery/procedure to confirm the side, site, patient identity, and surgery/procedure.

READ ON

 

Closely Monitoring the 26.5% Medicare Physician Payment Threat

Via HCMA, SGR Advocacy Alert from the AMA – – – –  The negotiations between Speaker Boehner and President Obama on the Lame Duck tax and deficit reduction package are at an impasse. There is a very real threat of the 26.5 percent Medicare physician payment cut taking effect on January 1, 2013, at least temporarily.

If Congress does adjourn without addressing the payment cut being induced by the sustainable growth rate (SGR) formula, the Administration announced today that the Centers for Medicare and Medicaid Services will follow normal claims processing procedures.

That is, claims will not be held and Medicare carriers will process payments for physician services provided after December 31 under the normal 14-day cycle required by law.  Payment for these claims would be based on the new, lower fee schedule conversion factor of $25.0008, as opposed to the current rate of $34.0376.

At this time, it is impossible to predict whether the 112th Congress will find a way to pass a stop-gap measure before adjourning, how long such a measure would last, or how long payment cuts will be in effect before legislation can be passed after the 113th Congress convenes in January.  It is highly unusual for a new Congress to enact significant legislation in the first month of its session, but the circumstances facing our nation today are far from typical.

It is inexcusable that Congress is once again putting the 47 million Medicare patients and the practices of physicians who provide them needed health care at significant risk.  The Medicare program has become unreliable and its instability undermines efforts by physicians to implement new health care delivery models that stand to improve value for seniors and other beneficiaries through better care coordination, chronic disease management, and keeping patients healthy.

The AMA believes that the financial disruption this situation will cause for physicians and their practices is unacceptable, and we will continue to fervently convey this message in the strongest possible terms to Congress and the Administration, as we have for the past several weeks.  Our patient and physician grassroots networks have been activated, and we are seeking your voices to tell Congress just how deeply its inaction will affect you.

Despite these efforts, at this time we feel compelled to advise physicians to start making plans for steps they can take to mitigate this disruption and meet their own financial obligations in January, in case the 26.5 percent cut actually takes effect.  Given the potential impact on practice revenue in early January, physicians should be certain adequate arrangements are in place to sustain their practices.  For those physicians who are forced into the untenable position of limiting their involvement with the Medicare program because it threatens the viability of their practices, we urge that patients be notified promptly so that they, too, can explore other options to seek health care and medical treatment.

Physicians & Facilities Frustrated in Upcharging Lab Fees

Licensed healthcare providers and facilities (including many drug and alcohol recovery businesses) who enter into arrangements with clinical labs to provide services to their patients and who then wish to charge more for those lab services will be very disappointed to learn about the restrictions under Florida law.

Section 456.054, Florida Statutes prohibits “kickbacks” and reads—

(1) As used in this section, the term “kickback” means a remuneration or payment, by or on behalf of a provider of health care services or items, to any person as an incentive or inducement to refer patients for past or future services or items, when the payment is not tax deductible as an ordinary and necessary expense.

(2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.

(3) Violations of this section shall be considered patient brokering and shall be punishable as provided in s. 817.505.

The issue involved in a provider or facility charging more for lab services than they were charged by the lab itself is that the prohibition above applies to healthcare providers and “any provider of healthcare services.”  Regulators may find any reduced fee by the lab to constitute a kickback in exchange for a volume of patient referrals.

A related issue has to do with Florida insurance laws that pertain to charging more for an item or service than the provider or facility was charged.  For instance, if Lab 1 charges the provider/facility $10 for lab work, and the provider/facility charges an insurer $20, that can be found to constitute insurance fraud.

The key Florida prohibition, however, is found in the Florida Administrative Code, which reads—

59A-7.037 Rebates Prohibited – Penalties.

(1) No owner, director, administrator, physician, surgeon, consultant, employee, organization, agency, representative, or person either directly or indirectly, shall pay or receive any commission, bonus, kickback, rebate or gratuity or engage in any split fee arrangement in any form whatsoever for the referral of a patient. Any violation of Rule 59A-7.037, F.A.C., by a clinical laboratory or administrator, physician, surgeon, consultant, employee, organization, agency, representative, or person acting on behalf of the clinical laboratory will result in action by the agency under Section 483.221, F.S., up to and including revocation of the license of the clinical laboratory. In the case of any party or individual not licensed by the agency acting in violation of this Rule, a fine not exceeding $1,000 shall be levied and, as applicable, the agency shall recommend that disciplinary action be taken by the entity responsible for licensure of such party or individual.

(2) No licensed practitioner of the healing arts or licensed facility is permitted to add to the price charged by any laboratory except for a service or handling charge representing a cost actually incurred as an item of expense. However, the licensed practitioner or licensed facility is entitled to fair compensation for all professional services rendered. The amount of the service or handling charge, if any, shall be set forth clearly in the bill to the patient.

(3) Each licensed laboratory shall develop a fee schedule for laboratory services which shall be available to the patient, the authorized person requesting the test or agency upon request and shall be subject to subsection 59A-7.037(2), F.A.C.

In this era where healthcare providers and facilities are struggling to hold onto dwindling profit margins, it is understandable why some are considering arrangements with clinical labs.  Still, Florida providers and facilities have to be extremely cautious when entering into such arrangements.