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 →

How to Protect Your Practice’s Trade Secrets

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dreamstimemaximum_51887081-flipBy: Shobha Lizaso

“Prevention is better than cure” is a maxim that has reigned in the healthcare industry for thousands of years; however, this phrase echoes through the halls of the legal profession as well.

Healthcare practices often neglect to appreciate the value of their confidential information as assets and the need to protect these assets. Although HIPAA and HITECH compliance aids in maintaining the confidentiality of patient records, it does not protect a provider’s trade secrets.

Trade secrets of a healthcare practice may include any of the following: patient lists, financial information, contract rates, contract terms client lists, collection rates, marketing tactics, pricing/discount information, and methods of doing business. If leaked, this information may be used by competitors to secure advantages over a healthcare practice. For example, patient lists could be used to solicit a practice’s patients or contract rates and terms can be used by a competitor to undercut the rates of a practice. Continue reading →

Medical Ethics Corner: Celebrity PSA for PSA

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By: Dr. Brent Schillinger, Guest Contributor

In the broadcast and print media world PSA stands for public service announcement.  In medicine PSA stands for prostate specific antigen.    Along comes comedian/actor Ben Stiller who basically releases a public service announcement urging men to be tested for elevated levels of prostate specific antigen.  This all sounds well and good but since the release of Stiller’s announcement live on the Howard Stern Sirius radio show in early October, there has been nothing but controversy. Continue reading →

Investigate My Office Staff?

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Notebook and lens conceptBy: Randy Goldberg, Esq.

Today’s workplace, like society has evolved into an extremely litigious environment that is plagued with legal duties and responsibilities that in years prior was never more than a passing thought.

Not only is much of the heartfelt bantering and jocularity between members of the work staff now forbidden, but now we have to investigate any and all allegations that may have resulted from what was thought to be innocent bantering.  This obligation to investigate encompasses not only the aforementioned jesting, but pretty much anything that is taking place in the office setting.  In the healthcare world, where compliance is taken to a dimension far greater that the average business setting, this duty to investigate is that much greater and involved.

There is only one thing worse than not conducting an internal investigation in your office when required.  That is conducting an investigation which is plagued with bias and which was conducted in an unfair manner. Continue reading →

The Patient Brokering Act and Addiction Treatment

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anti kickbackBy: Jeff Cohen, Florida Board Certified Healthcare Lawyer 

Followers of the addiction treatment industry should be on high alert after the arrest of Christopher Hutson of Whole Life Recovery.  The arrest marks the first arrest of any industry provider utilizing the state Patient Brokering Act (PBA).  Relying solely on the allegations, the arrest is based on a business relationship between the provider and sober homes.  Discussion in the “case management agreement” referred to in the arrest affidavit circles around some key allegations that include or imply (1) payment for patient referral, and (2) services by sober homes paid for by Whole Life which were not actually performed.

Serious industry providers absolutely MUST be well educated by lawyers who have years’ experience dealing daily with issues that include the federal Anti-Kickback Statute (and safe harbors), the bona fide employee exception to the AKS, the PBA and how insurers and regulators (inside Florida and outside Florida) interpret and apply such laws.  Any contract (like the sort of agreement referred to in the arrest warrant affidavit) that isn’t preceded by careful client education about the laws, the options and risks of each option is just reckless.  Clients who are well educated will understand things like— Continue reading →

Medical Ethics Corner: EpiPen 2.0

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epipenBy: Dr. Brent Schillinger, Guest Contributor 

Recently there was a great deal of hoopla in the news when it was revealed that the manufacturer of the long time well known life-saving device, the EpiPen, had raised its price by five thousand percent since 2010.  This was the lead story on nearly all the major and minor news outlets for about a week.  Then, as is routinely the case with most news cycles, and certainly with a variety of abusive pharmaceutical pricing stories, the reports seemed to vanish.  In the weeks that have ensued since the breaking story, Mylan, the drug giant behind he EpiPen, has done very little to rectify this seemingly outrageous rip-off of the American health care consumer. But now these poster-bad-boys of the industry are quietly taking things to an even more egregious level.

Last month the New York Times reported that Mylan is lobbying all involved parties, in particular the United States Preventive Task Force, to get EpiPen placed on the federal preventive list.  By law, when a drug is positioned on this sacred list, most families would have very little or no out of pocket costs.  Under the Affordable Care Act, recommendations from this task force must be adopted by all health insurance companies. Continue reading →

The EMTALA Primer

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EMTALABy: Dave Davidson

In 1986 President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (EMTALA) into law.  Since then, the application of the law has been expanded and refined.  It was one of the first laws giving the government the authority to dictate certain operations of a hospital.  While other laws and regulations such as the Anti-Kickback Statute and the Stark Law have become more of a focus for health care providers, EMTALA remains an area of active enforcement.  All providers with hospital privileges should therefore be aware of its application.

The policy behind the law is fairly straightforward.  Hospitals with emergency departments should not be able to turn away patients needing care because of their inability to pay (no more “wallet biopsies” as part of triage).  Likewise, hospitals should not be able to “dump” patients on other facilities for reasons other than for advanced care.

The requirements of the law are also very basic.  If a patient comes to an emergency department and requests an examination or treatment for a medical condition, the hospital must provide an appropriate medical screening exam, within its capability, to determine whether or not the patient has an emergency medical condition.  The screening provided goes beyond simple triage, and must be performed by a clinical provider such as a physician, nurse practitioner, or physician’s assistant. Continue reading →

Big Reimbursement & Balance Billing Changes in Florida Law

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VOBBy: Karina Gonzalez

Earlier this year, the Florida legislature passed prohibitions against balance billing by out-of-network providers for emergency services and where the patient goes to a contracted facility but does not have an opportunity to choose a provider such as emergency room physicians, pathologists, anesthesiologists and radiologists.

Specific reimbursement requirements went into effect on October 1, 2016 for certain out-of-network providers of emergency and non-emergency services, where a patient has no opportunity to choose the provider.

Under these circumstances, an Insurer must pay the greater amount of either:

(a)         The amount negotiated   with an in-network provider   in the same community where services were performed;

(b)        The usual and customary rate received by a provider for the same service in the community where service was provided; or

(c)         The Medicare rate for the service. Continue reading →

Medical Ethics Corner: Lattes & Health Care

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health-care-coffeeBy: Dr. Brent Schillinger, Guest Contributor

If you’re not satisfied with your medical care at the Pennsylvania based Geisinger Health System you now have a recourse not often found in traditional medical practice. You can ask for a refund.  And thanks to technology you can conduct the entire transaction through an app on your smartphone and the money will come back to you in three to five business days.

This novel step in the world of medical practice is perhaps the latest consequence of the corporatization of medicine and the transition of patients into consumers.  In fact in numerous published articles, Geisinger CEO Dr. David Feinberg repeatedly suggests that delivering medical care is not very different from buying a coffee at Starbucks.  “If you don’t like the cappuccino, they don’t sip it and say, ‘We made it right, we’re not giving you a new one,’” was Feinberg’s quip in a recent edition of Healthcare IT News in defense of his refund policy, which started as a pilot in November of 2015 and now is in full swing. Continue reading →

Medicare Reporting & The 60 Day Rule

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health law complianceBy: Karina Gonzalez

Earlier this year, CMS (Centers for Medicare and Medicaid   Services) released its  final rule related to  reporting  and returning  identified  Medicare and Medicaid overpayments for Medicare Part A and B. The rule is referred to as the “60-day rule” and it governs when an “identified” overpayment must be repaid to the government before it will be subject to liability under the federal False Claims Act (FCA), Civil Monetary Penalties Law and exclusion from the federal health care programs.

The Final Rule went into effect on March 14, 2016

An overpayment is “identified” for the purposes of reporting and overpayment under the 60-day rule when a provider or supplier “has or should have, through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment.” Continue reading →