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Regulation of Unlicensed Activity by the Florida Department of Health

In the State of Florida, the Department of Health regulates the unlicensed practices of health care professionals. Florida Statute § 456.065 states that any practice, performance, or delivery of health care services by an individual without a valid and active license to practice that profession is strictly prohibited. 

Not only can practicing without a valid license accumulate hefty fines for an offender, but it can also impose criminal penalties and/or sentences. The Unlicensed Activity Unit works with law enforcement and the state attorney’s offices to prosecute any individuals practicing without a license.

Among the list of regulated healthcare professions that require licensure, some include:

  • Massage Therapists;
  • Physicians;
  • Tattoo Artists;
  • Nurses;
  • Occupational Therapists;
  • Pharmacists;
  • Dietitians/Nutritionists;

Cease and Desist Notices

Once the Department of Health has probable cause to believe someone is practicing without an appropriate license, the department may issue a notice to the violator or any person who has aided and abetted the unlicensed person through employment, to cease and desist from the violation. If the cease-and-desist notice is violated, the department may seek an injunction or a writ of mandamus in the court to further enforce it. For each day that the unlicensed person continues to practice after the cease-and-desist notice is issued, it creates a separate violation.

Citations

In addition to cease-and-desist notices, the suspected violator may receive a citation of a minimum of $500 and up to $5,000 per incident. Subsequent costs the department is entitled to recover could include the cost of the investigation, prosecution, and attorney’s fees and costs if the department was required to seek enforcement for the cease-and-desist notice. Once the citation is served, the respondent has 30 days to dispute the matter, otherwise the citation becomes a final order.

Within 30 days of the finalized agency action, the affected party has a right to seek judicial review under Florida Statute § 120.68. Pursuant to the Florida Rule of Appellate Procedure 9.110(c), the proceedings are initiated by filing a notice of appeal with the Agency Clerk of the Department of Health, filing a second copy, and paying the filing fees required.

The reviewing court may decide any of the following:

  • Order agency action required by the law;
  • Order agency exercise of discretion;
  • Set aside agency action;
  • Remand the case;
  • Decide the issue between the parties.

In addition to one of the options stated above, the court may also order such ancillary relief that the court deems necessary to redress the effects of official actions that were wrongfully taken or withheld.

Criminal Penalties

Florida differentiates between practicing without a license for up to 12 months or more than 12 months. The severity of penalties may also increase if any activities performed while practicing unlicensed leads to serious bodily harm or injury.

Practicing without a valid license for a period of more than 12 months is a third-degree felony that is punishable with a minimum fine of $1,000 and a minimum mandatory period of incarceration for 1 year. This third-degree felony also includes individuals who apply for a position requiring a license without notifying the employer they do not have an active license and those who purport themselves as able to provide a healthcare service for which they are not properly licensed. 

Those who are practicing unlicensed for a period of up to 12 months can be convicted of a misdemeanor of the first degree and subject to a minimum of 30 days in prison and a $500 fine.

For individuals who practice without a valid license and subsequently cause bodily injury, it is a felony of the second degree. Serious bodily injury can mean a multitude of situations including death, brain damage, spinal damage, disfigurement, fracture of bones, dislocations of joints, limited sensory functions, or a condition that requires surgical repair following the unlicensed treatment. The minimum penalty is a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.

The Takeaways

The unlicensed practice of health care can have serious impositions on the administrative side and criminal side. An individual practicing without a valid license may be delivered a cease-and-desist notice to halt their practice which can have further implications if the notice is not abided by. Furthermore, individuals practicing unlicensed may be subject to citations and criminal proceedings that include fines and imprisonment.  

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

What are Work Relative Value Units (wRVUs) in Physician Employment Agreements?

When a physician provides a service, the reimbursement amount for that work is often measured through a metric referred to as work relative value units (wRVU). Although not every physician may be subject to wRVUs, such as physicians who have their own private practice, many physicians who work in large healthcare organizations may be required to meet a minimum amount of wRVUs.

The goal of the wRVU model is for physicians’ compensation to be directly correlated to the amount of work they perform, regardless of the patient’s insurance plan or the revenue generated during the services. Focusing on the amount of work performed has proven to be more effective than the previous method of tracking a physician’s productivity by the number of patients seen and number of services performed. Additionally, calculating reimbursement simply off the amount charged to the patient can be ineffective as well because the amount does not necessarily reflect the underlying value of the work provided. As such, the current wRVU model is the standard compensation model that many physicians and employers use in the healthcare industry.

How wRVUs Operate

The calculation of wRVUs considers a multitude of factors such as:

  • the work the physician is performing;
  • the costs associated with the necessary equipment;
  • the skill required;
  • the costs of liability insurance and;
  • the time associated with the procedure.

The total work that is involved in a physician performing a service typically includes the preservice work provided before the service (i.e., reviewing medical records, surgery prep), the work provided during the service (i.e., medical examination, surgery), and the work provided after the service has been performed (i.e., post-operative care, further documentation).

Typically, each service performed by a physician has an associated number called a CPT code. Each CPT code receives a wRVU that is combined with the previously mentioned factors to create a total RVU. From there, the total RVU is multiplied by the Medicare conversion factor (currently placed at $32.74 in 2024) to determine the reimbursement amount of the service. The Medicare conversation rate is determined by the Medicare Economic Index, however, it is important to note that private insurance companies and Medicaid may have a different conversion rate for wRVU to dollars.

Benefits of the wRVU Model

One of the most common benefits of the wRVU model is the transparency associated with it. The wRVU’s and the conversion factor are standard. This makes it easier for a hospital to administer and prevents one doctor from getting paid more than another while performing the same work. Despite wRVUs leveling the playing field by standardizing the compensation for each service performed, the implementation of wRVUs can create healthy competition among physicians as well. The wRVU system encourages physicians to maintain a steady stream of patients. As a result, the hospital has the possibility to flourish as physicians compete to acquire new patients.

The steady stream of patients not only helps the hospital in acquiring new patients but also in retaining already existing patients. The wRVU model may encourage physicians to follow up with their patients more often, as post-operative care and other post-procedure services are included in the compensation model.

Downsides to be Aware of

Though the wRVU can provide many benefits to employers such as easy implementation of the system and healthy competition in the work environment which increases physician productivity and patient numbers, the wRVU model can also have some cons.

Since the wRVU model relies on CPT codes in their final calculations for reimbursement, services performed by physicians that do not have an associated CPT code, such as tasks performed outside of patient care do not get compensated. In an effort to reach the amount of wRVU’s physicians need, those tasks not associated with a CPT code may lose priority to tasks that will be compensated instead. This can also encourage physicians to focus on the quantity of the work they perform, rather than the quality.

While healthy competition in a work environment can be a good thing, especially for employers, for physicians it may create a challenging work environment. In a hospital, peers often collaborate to discuss the best route for a patient’s treatment. In a competitive environment, it may discourage that collaboration, harming not only the physician’s productivity but the patient as well.

As a result of these effects the wRVU model may have on physicians, it can lead to burnout which then can impact the physician, patient, and the employer.

Negotiating wRVUs

Some physicians may have the ability to negotiate their wRVUs. The process for negotiations may be more limited for physicians in larger organizations but may be possible for those in private practices or smaller groups. Understanding the terms of the contract can help a physician negotiate wRVUs with insurance companies or a hospital administration. It is important to note, however, that reimbursement rates provided by Medicare and Medicaid are determined by the government and not open for negotiation.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Jamaal Jones Appears as a Panelist on South Florida PBS to Discuss Unequal Access to Healthcare

On February 28, 2024, Jamaal R. Jones, Esq. appeared as a panelist on South Florida PBS to discuss how people of color are affected by unequal access to healthcare services.

“Despite decades of advances in medicine, people in underserved communities, especially Black communities, must deal with unequal access to healthcare that results in higher rates of death and disease. In the Unequal Access: Confronting Racial Disparities in Health Town Hall, we will look at the social determinants of health and the problem of structural racism to expose the truth about health disparities and discuss solutions.”

You can access the episode by clicking here.

Guidelines for Closing or Relocating a Florida Medical Practice

By Ashley Lockett

Throughout the career of a healthcare practitioner, there may arise a multitude of reasons that can prompt the closing or relocation of their healthcare practice. These reasons may vary from retiring, moving, deciding to pursue another opportunity, or illness/death of the practitioner. Despite the various reasons one may have for closing or relocating a medical practice, there are guidelines that dictate the proper procedures to follow for a smooth process.

The Guidelines

Record Keeping

Fla. Stat. §456.057(13) of the Florida statutes states that “records owners shall notify the appropriate board office when they are terminating practice, retiring, or relocating, and no longer available to patients, specifying who the new records owner is and where medical records can be found.”

As defined in the statute, a records owner means:

  • Any health care practitioner who administers treatment, dispenses drugs, or generates a medical record after making a physical or mental examination of any person.
  • A health care practitioner to whom records are transferred by a previous record’s owner.
  • Any health care practitioner’s employer provided that the agreement designates the practitioner’s employer as the records owner.

Notification of Changes

In addition to notifying the appropriate board office when retiring, closing, or relocating their practice, a record’s owner must also place an advertisement in the local newspaper or notify the patients in writing of the change, pursuant to Fla. Stat. §456.057(12). The patients of the practitioner must have the opportunity to request a copy of their medical record. According to Fla. Stat. §456.057(14), when a new records owner has been appointed, the new owner is responsible for providing a copy of the complete medical record to a patient or a patient’s legal representative who has requested the record.

Outside of notifying the appropriate board office and patients, practitioners may need to notify the Centers for Medicare & Medicaid Services and the U.S. Drug Enforcement Agency to comply with the appropriate disposal of the drugs within the practice. If the practitioner holds a license from the Department of Health for their use of medical equipment, they must notify the department and keep a record of the transfer or disposal of the equipment. Other establishments that may need to be notified include the Florida Agency for Health Care Administration, the hospital where the practitioner worked if applicable, other vendors whom the practitioner may have received supplies or equipment from, and the practitioner’s medical malpractice insurance carrier.

Failure to Follow the Guidelines

Under Fla. Stat. §456.057(15), a licensee shall be subject to discipline by the appropriate licensing authority if they are found to be in violation of the guidelines set. A healthcare practitioner is among those who are deemed a licensee.

Among those unlicensed, Fla. Stat. §456.057 states that “the Attorney General is authorized to enforce the provisions of this section for records owners not otherwise licensed by the state, through injunctive relief and fines not to exceed $5,000 per violation.”

Non-Compete Agreements

For individuals who plan to continue practicing after closing or relocating their practice, any non-compete agreements that may have been signed when initially onboarding are important to keep in mind. Non-compete agreements are restrictive covenants that restrict an employee from competing with their employer after the employment period has ended. Although terms of non-compete agreements vary depending on the employer, restrictive covenants are required to be reasonable in regard to “time, area, and line of business,” under Fla. Stat. §542.335(1).

A restrictive covenant is not enforceable unless it is in writing and signed by the individual whom the enforcement is seeking to effect. Furthermore, the person seeking enforcement must prove the existence of a legitimate business interest that justifies the need for the restrictive covenant.

Legitimate business interests are defined under Fla. Stat. §542.335 as:

  • Trade secrets.
  • Valuable confidential business or professional information.
  • Substantial relationships with specific prospective or existing customers, patients, or clients.
  • Customer, patient, or client goodwill associated with:
    1. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
    2. A specific geographic location; or
    3. A specific marketing or trade area.
  • Extraordinary or specialized training.

When an employee enters a valid non-compete agreement, it is crucial to thoroughly understand the terms of the conditions or serious consequences for violating it can occur. In Alonso-Llamazares v. Int’l Dermatology Rsch., Inc., a former employee was sued after violating their non-compete agreement. The non-compete agreement listed several stipulations that prohibited the employee from competing with the company during the time of their employment and two years after the expiration of it. Although the agreement listed the employment as ending on December 31, 2017, the employee worked for the company until November 1, 2019. Thereafter, the employee began working elsewhere on January 2, 2020. Despite the employee arguing that the agreement ended in 2017, the court found that the language of the agreement intended for the covenant to survive the expiration or termination of the agreement.  

Key Points

Whether a practitioner plans on retiring or chooses to work elsewhere, the requirements for closing or relocating the practice are important to abide by. Consulting with an attorney on the necessary steps may provide ample support in the process. For practitioners choosing to work elsewhere, the exit of a medical practice may mean the start of a non-compete agreement.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

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