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What All Medical Professionals Should Know about Florida’s New Elderly Exploitation Laws
Learn about the duties put on Medical Professionals to report financial exploitation and abuse of the elderly and other vulnerable adults.  Practical advice for medical and health professionals to ensure they adhere to the new laws is provided, as well as, the potential legal consequences for failure to do so.

Tuesday, December 8th @ 12 Noon ET
Register for this (no cost) live seminar.
Published in Press Releases
Friday, 22 December 2017 21:54

Healthcare Law

Healthcare Law Service Offerings

We represent physicians and physician group practices in business, transactional, litigation, professional licensure, regulatory, operational and administrative matters.  Our firm offers the full range of regulatory, privacy, and compliance counsel services specific to healthcare providers.  Please note, we do not represent patients in any HIPAA, Medical Malpractice or Healthcare Law Matters.  We only represents Healthcare professionals and Healthcare facilities.  If you are a patient looking for representation, please do not contact our firm, we are unable to refer you at this time and are advising you to seek counsel from The Florida Bar Association lawyer referral service at (800) 342-8011 or online.

Our attorneys are prepared to work on cases involving:

  • Physician Employment Agreements
  • Medicare, Medicaid and Fraud & Abuse Compliance & Defense
  • Managed Care Contracting, Credentialing and Reimbursement
  • Medical Records Laws - Compliance, Privacy & Security
  • HIPAA - Compliance, Enforcement, Audits & Breach Notification
  • Defense of Professional Licensure, Disciplinary & DOH Investigation Proceedings
  • Stark Law and Self-Referral Law - Compliance and Advisory Opinions
  • Management Services Companies, Contracts & Agreements
  • Healthcare Licensing & AHCA Licensing Representation
  • Healthcare Provider & Medical Director Contracts
  • Physician/Hospital Integration - Employment, Practice Acquisitions, Co-Management Arrangements and Contracts
  • Cyber Liability - Investigations and Complaints Defense

Physician Employment Agreements

Florida Physician Employment Agreement Lawyers

Whether an entity is employing physicians or a physician is entering into a new position, our team can negotiate and carefully craft new employment agreements or examine existing arrangements.  Either way, our goal at our firm is to provide clients with an understanding of their rights and responsibilities under any employment contract.

Some of our services include:

  • Preparation and review of physician employment agreements
  • Drafting noncompete agreements for physician groups
  • Reviewing noncompete agreements for physicians
  • Protecting your rights under noncompete agreements
  • Independent contractor agreements
  • Physician-hospital agreements
  • Physician recruitment agreements
  • Medical director agreements
  • Advanced Registered Nurse Practitioners, Certified Registered Nurse Anesthetists: employee agreements, protocols, collaborative practice agreements
  • Litigation

In addition, our attorneys litigate cases involving tail coverage, noncompetes and breach of contract.

As medicine becomes more specialized and competitive, many physician groups use non-compete agreements to protect themselves from having to compete for patients with former staff.  Whether these agreements are enforceable is fact-specific and requires extensive investigation of the situation.

Our lawyers carefully counsel our clients on whether they want to pursue litigation to resolve employment agreement disputes or explore other options. Litigation is stressful and expensive.  However, if we ever feel that litigation is in our clients' best interest, our attorneys are prepared to aggressively defend their rights.

Florida Medicare And Medicaid Fraud Defense Attorney

When it comes to healthcare, Florida is one of the most heavily regulated states in the country.  In addition to federal law, Florida healthcare law is fraught with nuanced regulations that apply to:

  • Primary healthcare providers
  • Physicians
  • Groups
  • Medicare Part B providers
  • Diagnostic imaging centers
  • Ambulatory surgical centers
  • Durable medical equipment providers
  • Other professionals

Ultimately, there are three main federal laws about which medical professionals and organizations need to be aware:

  1. The Stark Law
  2. The federal anti-kickback statute
  3. The federal false claims statute

Within all of these, one must be extremely familiar with Medicare billing regulations, provider enrollment and the use of ancillary providers including nurse practitioners and physicians assistants and 'incident to' billing.  All too often these present serious costly mistakes.

On the local level, healthcare providers must pay attention to the Florida Patient Self-Referral Act and the Florida Patient Brokering Act.

Ultimately, it is extremely important for clients undertaking these transactions to fully understand their exposure and obligations. Many physician groups go into situations with management agreements, investing in or contracting to be medical directors for diagnostic imaging, home health, nursing homes, assisted living facilities, co-management agreements with hospitals and surgical centers. 

If you or your organization is faced with any of these issues, it is critically important to understand your legal obligations and to mitigate all potential risk and costs.

Florida Medicare Fraud Defense Lawyer

We are prepared to bring our experience to look at transactional agreements, medical director agreements, co-management agreements, management services agreements, in-house pharmacy or physician dispensing agreements where they want to bring an ancillary piece into their practice. We also defend allegations that physicians or clients have violated the FPBA or anti-kickback statute

We review these to ensure that when they go into them, they are compliant and will not violate any of these laws. A lot of times there are exceptions under the Stark Law that are safe harbors. We will actively do everything to promote a culture of compliance and transparency through codes of conduct, staff policies, corrective action components and internal auditing. We then try to drive transactions within the safe harbors and have extensive experience writing opinion letters, carrying out analysis and advising clients on whether they should accept the deals or go into them. This includes issues related to:

  • Space rental
  • Equipment rental
  • Personal services
  • Management contracts
    • Medical director agreements
    • Professional service agreements
    • Co-management agreements

In every case, we review the structure of transactions, write agreements and advise clients on compliance. Our attorneys also defend clients in civil litigation related to government investigations, Medicare and Medicaid audits, investigations by the Office of Inspector General and Florida Department of Health.

Additionally, we are prepared to work as co-counsel with criminal defense lawyers on fees splitting and Patient Brokering Act issues. We are also often called in to defend in PIP cases and private insurance litigation as well as healthcare law.

Florida Lawyer For Managed Care Contracting, Credentialing And Reimbursement

The Affordable Care Act (ACA) will bring about unprecedented changes to healthcare requirements.  Insurers and managed care companies will have to provide more benefits without increasing premiums.  Unquestionably, this is going to put extreme pressure on the medical community.  If your organization is working through managed care contracting, credentialing or reimbursement issues, we are prepared to put our expertise to work for you.

Our lawyers have reviewed more than a hundred managed care contracts for physician groups ranging from one or two doctors to hundreds.  This has included some of the largest healthcare companies in the country, including Aetna, Cigna, and Blue Cross Blue Shield.

Our Orlando managed care attorneys are prepared to work on cases involving:

  • Contract review: prompt pay, medical records, terminations provisions and Section 641.315 of Florida statutes matters
  • HMO, PPO and IPA (full risk or capitated contracts)
  • Credentialing application issues
  • Collecting money owed from managed care or health insurance companies
  • Reimbursement disputes
  • Overpayments
  • Underpayments
  • Silent PPO issues

Many Florida medical professionals do not understand the subtle differences in products with respect to (illegal) payer clauses and credentialing in managed care contracts.  It is absolutely critical to get all documentation reviewed before signing a contract. Many doctors and providers mistakenly think that managed care contracts are boiler plate and cannot be negotiated.  Depending on market price, specialty and service, these contracts are negotiable and can be tailored to optimal business process.

Additionally, many doctors do not understand the differences between health maintenance organizations, preferred provider organizations and the details of preferred service plans.  They do not know if they are signing a broad contract with a payer, so they have to be careful about silent PPOs.

While many advent of the ACA, many doctors want to do more with less funding and will take on agreements that are not optimal. We are prepared to look for key language in contracts and how to negotiate it out.  We will ensure that physicians do not take on plans they do not want, like Medicare advantage or a Medicaid HMO plan, and address all relevant credentialing issues under the ACA.

We also recognize that with the decline in reimbursements under PIP laws, certain medical providers are receiving less and less.  We are prepared to look at all reimbursements and contractual issues, calling in specialists as necessary. Our knowledge of Florida out-payer contracts readies for any reimbursement or credentialing issue.

Florida Lawyer For Medical Records Compliance, Privacy And Security

Medical records compliance, privacy and security is a complex ever-changing area of law about which all medical providers must be aware - on both the federal and local level.

Under Florida law, statutes 456.057 and 395.3025 apply to individual providers and hospitals/medical facilities.  Florida law is specific about medical record ownership.  The owner of records has a duty to protect privacy and security of records.  That said, if you merge, sell your practice or buy a practice, this question gets complex and issues of liability and responsibility come into play.

There is a lot of scrutiny not only from entities like the Agency for Healthcare Administration, Department of Health, Board of Medicine and Board of Osteopathic Medicine, chiropractic medicine on proper release of records.  Often patients complain that the release is not quick enough, which starts investigations of hospitals, surgical centers, doctors and other providers.

All healthcare providers must be prepared to answer several questions:

  • Do you do an inventory on paper records?
  • Do you have an agreement on disposal methods? How will they be integrated?
  • How will they be made secure?
  • Will they be private?
  • Will people have access to them after the transaction is complete?
  • Who owns them?
  • For how long are authorizations good?

If you or your organization is not completely sure that your records process is compliant, it is crucial to reach out to a skilled healthcare law firm to reduce your risk and exposure.

We have extensive experience representing and training hospitals, ambulatory surgical centers and other facilities on medical records confidentiality matters.  This includes:

  • Helping understand what statutes under Florida law can be congruent but also different from HIPAA
    • How to release records
    • How to protect them
    • Drafting procedures
  • Drafting authorization release forms and consent to release forms
  • Defending doctors with DOH investigations
  • Defending in federal HHSOCR office of civil rights investigations

Regardless of your issue, our medical records lawyers will bring their expertise to help you proactively address all issues in the most efficient, effective and economical way.

Florida Lawyer For HIPAA Compliance, Enforcement, Audits And Breach Notification

Medical records permeate everything in healthcare − whether it is treating patients or defending an investigation.  The current push for seamless access to these records, coupled with increasing pressures for medical record privacy and security, is creating new challenges for healthcare providers every day. With the legislation passed at the beginning of 2013, things are only getting more and more difficult for covered entities (CE) and business associates.

Ever-changing technology has allowed CEs and business associates to elevate their level of service and streamline processes.  It also opens the door to potentially catastrophic mistakes. If the wrong person leaves an unencrypted cellphone or laptop at a public place and it disappears with nonredacted patient information, a healthcare organization may be out thousands or millions of dollars in addition to facing a public relations disaster.  This sweeping legislation has been the culmination of steadily increasing federal and state investigations, and the final ruling means that patient rights and demands are at an all-time high.

If you or your organization is considered a HIPAA-covered entity, you are responsible for your liability as well as that of your business associates.  If you are looking to get in compliance, have identified a possible internal compliance breach that you need to fix or are facing a possible a Florida Health and Human Relations/Office for Civil Rights hearing, we are here for you.

Orlando HIPAA Compliance Lawyer

As one of the premier law firms in Florida specifically dedicated to healthcare law, we are ready to put our expertise to help you or your organization address any HIPAA-related issue. We have extensive experience working with covered entities, including:

  • Physicians
  • Physician groups
  • Hospitals
  • Home health agencies
  • Durable medical equipment companies (DME)
  • Nursing homes
  • Skilled nursing facilitates
  • Business associates, including management service companies, IT companies, website designers, electronic medical record (EMR) companies and malpractice insurance carriers

We have brought our expertise to help clients with active internal auditing (including security, encryption, policies procedures, business associate agreements), addressing any compliance issues after they have been caught internally and with OCR, HHS and privacy lawsuits.  Our board-certified Florida HIPAA compliance attorney and team are ready to do everything to help you reach an ideal resolution, regardless of your HIPAA issue.

Florida Lawyer For Defense of Professional Licensure, Disciplinary And DOH Investigation Proceedings

Our Orlando hospital and medical staff lawyers have handled thousands of license defense, disciplinary and Department of Health investigation proceedings in close to two decades.

We have extensive experience representing:

  • Doctors
  • Osteopaths
  • Chiropractors
  • Nurse practitioners
  • Physician assistants
  • Pharmacies
  • Pharmacists
  • Mental health counselors
  • Psychologists

This complex process starts with an investigation letter. These investigations come from multiple sources, including patients, disgruntled former employees, competitors, hospitals and DOH managed care companies, PIP companies and federal government investigations. If you have received an investigation letter, it is important to see if you are insured to cover the defense. From there, reach out to our legal team. We will inform you of your rights and undertake the necessary steps to properly respond to the Florida DOH letter. Our familiarity with licensure statutes and specific disciplinary sections allows us to ideally address all issues, including those related to:

  • Billing issues
  • Taking advantage of a patient for financial gain
  • Impaired practitioners
  • Prescription fraud
  • Criminal convictions related to a practice

Our Orlando professional licensure defense lawyers will address all issues related to healthcare laws involved in licensure statues, board rules related to medical record release, record keeping and standards of care.

It is important to realize that many formal administrative hearing in defense of administrative complaints go past probable cause panels to determine whether there is cause to take disciplinary action. This is just the first step, so it is critical to get counsel. It may be possible to obtain a dismissal at this point, but it requires decisive action to address complex technical rules and put in a detailed response.

All too often healthcare professionals will take settlement agreements thinking they are getting a good deal and will seriously damage their career; they will get thrown off staff, get put on proctoring or will be terminated by a managed care company, or PIP carriers will not deal with them.

Get in touch as soon as possible.

Florida Lawyer For Stark Law Compliance And Advisory Opinions

The federal Stark Law applies to physicians when they make referrals (to an entity for a designated health service) for Medicare and Medicaid patients. This often needs to be analyzed when there is a financial agreement, including:

  • Employment agreements
  • Medical director agreements
  • Rental space arrangements
  • Ownership agreements
  • Independent contract agreements
  • Physician-owned distributor issues
  • Equipment rental

Ultimately, physicians must not make a financial agreement with an entity with which they have a financial relationship. If the referral is made to an entity and the entity treats the patient and does everything correctly, there can still be a false claims act even though everything was done correctly on the billing or service — if the transaction is tainted, it is a false claim as the referral was illegal. It is important to realize that the Stark Law is hundreds of pages long and understanding it requires a comprehensive knowledge of healthcare law — and this is only on the federal level.

On the state level, regulations are similar but only involve investment or ownership interest. The Florida law applies to all referrals — workers' compensation, PIP, private insurance, self-pay and self-referrals. While the Florida law applies to health services, it has a catch-all provision. It is often overlooked in transactions when people are going into ownership relationships with physicians. What's unique is that both are per se— they do not require intent to violate. As such, all management agreements and management services agreements that involve referrals require review by counsel in order to protect against exposure.

Our Orlando Stark Law attorneys are prepared to bring their expertise to work on nearly any Stark Law issue, including:

  • Representing clients on advisory opinions
  • Opinion solicitations from the Center for Medicare & Medicaid Services
  • Requesting declaratory statements from the board of medicine
  • Self-disclosures and administrative settlements with the Office of Inspector General on state or federal level

Ultimately, any transaction that is related to Stark Law or the Florida Patient Self-Referral Act must be reviewed by experienced healthcare law lawyers in order to safeguard against catastrophe — we encourage you to get in touch and schedule a consultation if you are faced with these or related issues.

Florida Lawyer For Management Services Company Contracts And Agreements

More and more physicians and healthcare professionals and providers need strong management to free them up to focus on core processes and healthcare delivery. There is an entire subset of the healthcare industry developing with companies managing large integrated health networks, along with other management companies that put dispensing programs and offices to work on PIP and workers' compensation claims. Other companies manage a network of clinics and physician offices or provide physician management services.

If you seek to partner with a management company, it is critical to draft documentation and structure it in a way that is in line with Florida and federal anti-kickback statutes, particularly if there are marketing agreements.

We are prepared to address all issues with respect to management service agreements and structuring of management services. Our healthcare law attorneys will do everything to structure the compensation on a flat fee basis, addressing all fee-splitting issues with respect to Florida laws. In practice, this means that we will draft all contracts in terms of specific services and compensation, along with making sure that proper termination provisions and other issues are covered.

Additionally, our Orlando management services company lawyers are prepared to work on co-management arrangements. We can help clients streamline the delivery process, expenses and costs. It is important to note that these involve key issues of healthcare systems contracting with physicians and physician-owned entities. As such, we will make sure that all compensation is provided at fair market value and that it is compliant with all provisions set out by the Office of Inspector General.

Florida Attorney For Healthcare Licensing And AHCA Licensing Representation

We are prepared to represent providers and facilities licensed by the Agency for Healthcare Administration. We are able to address all unique licensing and Medicare participation requirements, in addition to initial complicated licensing requirements (under the Florida Healthcare Clinic Act). Because of the immense complexity of these applications, we work directly with clients and bring our comprehensive knowledge to address issues in the most efficient and cost-effective ways.

Additionally, our healthcare attorneys are prepared to write medical director agreements and contracts for providers and represent licensed care entities under various circumstances. We recognize that dispensing programs of practices and clinics present complex issues. As such, we are prepared to review compliance with respect to relevant statutes to include dispensing requirements under the Florida Board of Pharmacy rules, regulations and laws.

Our Orlando healthcare licensing lawyers can also bring our expertise to help healthcare clinics establish permits, address compounding issues and provide other analyses for wholesaler retail pharmacy drug permits.

As necessary, we can reach out to specialists to address all relevant issues. By partnering directly with clients, we have helped thousands of medical professionals and clinics address challenges proactively and set the foundation for stable, compliant and successful business operations. We encourage you to get in touch as soon as possible.

Florida Lawyer For Healthcare Provider And Medical Director Contracts

Contracts are an integral part of a successful healthcare profession.

We are prepared to bring our healthcare law expertise to review, draft and negotiate nearly any contract related to healthcare law. We often write medical contracts for physicians who are becoming medical directors in licensed healthcare clinics in the state, Medicare entities like skilled nursing facilities and home health agencies. Additionally, we often draft them for the entities in need of contracts. Other related services include:

  • Employment contract review
  • Drafting and negotiation for physicians or employers, physician practices, clinics, other types of entities that employ physicians
  • Managed services agreements
  • Professional services agreements they do for physicians
  • Negotiation and drafting of independent contractor agreements
  • Ownership and rental of diagnostic imaging equipment
  • Space rental
  • Medical director agreements
  • Professional service agreements

Our Orlando healthcare provider contract attorneys have represented nearly every kind of medical organization and organization in Florida, including:

  • Clinics
  • Diagnostic imaging facilities
  • Labs
  • Cardiovascular entities
  • Medical spas

It is critical that healthcare licensed professionals and entities have all agreements drafted carefully because they have implications for healthcare regulatory purposes like Stark and anti-kickback, fee splitting and Self-Referral Act issues.

Our lawyers will work directly with you to determine all issues and will draft up documentation that protects you in every applicable way.

Florida Physician/Hospital Integration Lawyer

With the current economic climate, more and more physicians are trying to do more with less — to utilize economies of scale to capture referrals and steady streams of patients. As such, more and more healthcare facilities, providers and physician groups are consolidating to bring together multispecialty practices.

In these cases, all contractual issues need to be examined. This includes:

  • Noncompetes
  • Employment agreements
  • Independent contractor and professional service agreements
  • Termination of medical staff privileges

All of these affect continued employment of physicians in multispecialty "supergroups," independent practice organizations and MSO entities. Additionally, issues arise during sale of assets, from record release compliance to EMR systems to managed care contractual considerations with respect to particular private insurance companies or managed care entities. All of these issues have extensive laws governing compliance. A multitude of questions may arise, including:

  • Who can make decisions?
  • What happens when a physician leaves a group — can he or she see his or her own patients?
  • Can physicians come and go from the healthcare entity and keep their contracts and still be allowed to participate with a particular private insurance company or managed care entity?
  • Is the compensation structure compliant with Stark and Florida fee-splitting requirements?

Failure to adhere to them can result in catastrophic outcomes, financially and legally.  As such, it is critical to partner with an expert healthcare law firm that can address all issues in the most efficient, economical and effective way.

Our healthcare law attorneys are prepared to put their years of experience to help you address any integration issue. We are prepared to help:

  • Draft agreements
    • Shareholder
    • Service provider
    • Operations
    • Noncompete
    • Nondisclosure
    • Nonsolicitation
  • Provide regulatory and anti-trust analysis
  • Negotiate with hospitals and wholly owned subsidiaries in purchases
  • Provide counsel to merging and acquisition issues
  • Contract preparation
    • Managed care contracts

We are prepared to retain skilled anti-trust lawyers in the event that a transaction is large enough that it involves issues of the Federal Trade Commission and Department of Justice. There are several safe harbors with which we work on a regular basis to determine if a physician group practice merger, practice acquisition or hospital system acquisition by another practice may invoke some anti-trust issues in a certain marketplace.

Cyber liability

We have handled HIPAA cyberliability/investigations/complaints defense cases in the following two categories: 1) a complaint-driven investigation; and 2) client discovered internal breaches.

Complaint-Driven Investigations

In complaint-driven investigations, a healthcare professional generally receives a complaint from the U.S. Department of Health and Human Services/ Office for Civil Rights stemming from a patient complaint.  The firm works diligently to prepare a sound defense, but seeks first to get the case dismissed.  Should the case not be dismissed, the firm seeks to take it before an administrative law judge for appeal.

Internal Breach Discovered

When a client discovers an internal breach, cyberliability issues frequently involve privacy regulations, infringement of intellectual property, and patient notification.  If the records for more than 500 patients are suspected of being compromised, the firm works with the client to activate required notifications to affected patients and the media.  Regardless of the size of the breach, the attorneys are here to walk you through the process.

Experience gained by the firm’s attorneys and paralegals in HIPAA cyberliability cases has allowed members of the team to participate in training roles in seminars throughout the state.  If you or your practice have experienced a breach, the staff is here to assist.

Published in Practice Areas
Forster Boughman & Lefkowitz

Our mission is to serve as a resource for complex domestic and international business transactions, tax, health law, asset protection, and related litigation.

Our firm is an approachable and economic alternative to large national and international law firms.  Se habla español.



 

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Contact Info

ForsterBoughman
2200 Lucien Way, Suite 405
Orlando (Maitland), Florida  32751


Local:  (407) 255-2055

Toll-free:  (855) WP-GROUP

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Office hours:  Open weekdays
from 8:30 AM to 5:30 PM