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Appointments Made to Autonomous APRN Council

Registration form for Autonomous Advanced Practice Registered Nurse is Now Available

The Boards of Medicine, Nursing, and Osteopathic Medicine have made appointments to the Council on Advanced Practice Registered Nurse (APRN) Autonomous Practice. Legislation creating the Council went into effect on July 1, 2020. The Council will recommend standards of practice for APRNs who register with the Board of Nursing for autonomous practice.

Appointees

Board of Medicine

Shailesh Gupta, MD (3 year term)

Hector Vila, MD (4 year term)

 

Board of Nursing

Charrita Ernewein, DNP, APRN, FNP (2 year term)

Vicky Stone-Gale, DNP, APRN, FNP (4 year term)

Sandra Williamson, APRN, CNM (3 year term)

Kathleen Wilson, PhD, APRN, FNP (2 year term)

 

Board of Osteopathic Medicine

Michelle Mendez, DO (4 year term)

Joel Rose, DO (2 year term)

Cassandra G. Pasley, BSN, JD, Director of the Division of Medical Quality Assurance, will serve as Chair of the Council as the State Surgeon General’s designee.

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The Board of Nursing voted to initiate rulemaking on various aspects of HB 607 during its meetings on June 5, 2020.

The registration application for autonomous APRNs will be available after it has been adopted by rule, which is anticipated to take approximately 90 days.  The Board voted to approve the application and move forward with rulemaking at its June 5th meeting.  The Board also voted to define “primary care practice” to include “health promotion, disease prevention, health maintenance, counseling, patient education, and diagnosis and treatment of acute and chronic illnesses in a variety of healthcare settings”.  This definition will also move through the rulemaking adoption process prior to becoming effective.

The Board determined that an equivalency to the required graduate level coursework required for registration would be 45 CE hours in each of the required subject areas.  These hours must be offered by a Board-approved provider or a national organization empowered to accredit nursing CE.  The courses must have been taken within the 5 years preceding the registration application.  Submitted courses must have documentation of differential diagnosis and pharmacology in the course description and objectives.

Can I Continue to Run a Medical Practice After the Sole Physician’s Death?

Authored by Marcus Leonard and Jamaal R. Jones, Esq.

Authored by Marcus Leonard and Jamaal R. Jones, Esq.

Inevitably, we will all pass away at some point in hopefully the distant future. Some of our deaths will be expected while others will come as a complete shock. Many people formulate a plan for after their passing and make arrangements accordingly for the succession of their personal and business affairs and belongings, while others do not. Occasionally, that deceased person happens to be the only physician in the medical practice. The staff and surviving family members have to quickly determine what their options are and whether they can legally continue to operate the practice without the physician.

Florida does not have the same Corporate Practice of Medicine Prohibitions as other states. In short, this means that you do not have to be a licensed medical doctor or doctor of osteopathy to own a medical practice. Many people erroneously believe that because of this fact they can continue to run the physician’s practice without taking any further action after she passes away. The Florida Health Care Clinic Act (the “Act”) requires that all health care clinics operating in Florida maintain a valid license by the State unless they fall within a statutory exemption. Also, if the health care clinic is cash-pay only and not accepting reimbursement from a commercial payor, Medicare or Medicaid then Florida law allows the business to continue to run without first obtaining the license. According to the Act, a “clinic” is defined as an entity which provides health care services to patients and bills third party payers for reimbursement for providing those health care services. Clinics that are “wholly owned by one or more licensed health care practitioners” are exempt from obtaining a health care clinic license. Thus, if a clinic is owned by a licensed health care practitioner who is supervising the services performed at the clinic and who is legally responsible for the entity’s compliance with all federal and state laws, the clinic falls within one of the exceptions and is exempt from the Act’s licensure requirements. However, in the untimely event that a sole physician/owner passes away, the clinic is no longer afforded exemption from the Act’s licensing requirements and is no longer in compliance with the law.

 

What are my Options?

In this instance, the family members have the following choices: (1) close the practice; (2) sell the practice; or (3) apply for a health care clinic license. If the decision is made to close the practice then you have to make sure that you wind up and dissolve the business accordingly. Alternatively, it can be tricky if the decision is made to sell the practice. Even if you hire another physician to provide treatment to the patients while you try to find a buyer for the practice you will still be violating the Act. As a result, you must not continue to provide health care services until the practice is sold to someone or an entity that qualifies for an exemption under the Act or until you receive a health care clinic license.

This is important because Florida law provides that an insurer is not required to pay for medical treatment that is not lawfully provided. The plain language of the Act makes clear that a claim for reimbursement made by a clinic that is not properly licensed or that is otherwise operating in violation of the Act, constitutes an unlawful charge that is deemed non-compensable and unenforceable.

Filing the application with the Agency for Health Care Administration for a health care clinic license it tedious and must be done carefully or you risk denial. Also, the applicant should not expect to receive the license expeditiously.

 

Penalties

Under the Act, it is considered theft for an entity that does not have a health care clinic license and does not meet the requirements for an exemption to submit a charge for reimbursement. You can be charged with committing a third-degree felony if you operate an unlicensed clinic. Each day that the person violates the act is considered a separate offense. If a physician who is working for a clinic knows or has reasonable cause that the clinic is operating without a license and fails to report the clinic then that physician will be reported to the medical board for failure to report the clinic. There will also be administrative penalties imposed upon those who practice without a license.

 

Conclusion

A clinic is required to register for a license under the Act even if they were previously exempt from licensure requirements prior to the physician’s death unless some other applicable exemption exists. A sole health care provider should create a plan for succession in the event of their death. For example, upon the physician’s death the shares of the practice can “automatically” transfer to another physician of their choosing so that there isn’t a gap in care to patients. This would require careful planning and legal considerations beforehand. Our firm is well equipped with knowledgeable and experienced health law attorneys who can assist you with planning for this difficult event.

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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.

Marcus Leonard is our 2020 Summer Intern

Marcus Leonard is a rising 2L at Florida International University College of Law. Marcus earned a spot on the Dean’s List for Fall 2019 and is a member of the Black Law Students Association. Marcus is proficient in Creole and is a Haitian-American.

He will be joining Jones Health Law as our 2020 Summer Intern. Internships at Jones Health Law are designed to give our interns the tools that they will need to successfully practice law once he or she graduates from law school.

Here are a few things that you should know about Marcus:

  1. Where are you from?

I was born in Chicago, Illinois, to Haitian parents before moving to Miami, Florida, where I have been raised most of my life.

 

  1. Why did you decide that you wanted to become a lawyer?

While pursuing my undergraduate degree in Business Administration I realized I wanted to be able to effect change in the world, specifically in my community. I believe that a career in law will put me in a position to help those in need of protection, advisement, and advocacy in a variety of ways.

 

  1. What interests you about health law? 

My experience working in an emergency department for many years piqued my interest in health law. Everyone goes through the health care system at some point in their lives, therefore, I would love to play a part by aiding healthcare facilities, providers, and employees through any legal barriers they might face.

 

  1. What are you hoping to gain from being an intern at Jones Health Law?

I hope that interning at Jones Health Law will provide me with practical health care lawyering skills and prepare me for a future career navigating and analyzing the rapidly evolving laws that govern health care. Learning how to apply my academic knowledge to real-world problems in the realm of health law will be a valuable and rewarding experience.

 

Welcome to the JHL Team Marcus! We are happy to have you aboard.

How Does a Nurse Practitioner Establish an Independent Practice in Florida?

Effective July 1, 2020, Advanced Practice Registered Nurses (“APRN”) will be able to register their own autonomous practice throughout Florida with the passage of House Bill 607. No longer will the APRN have to provide patient care within the framework of an established protocol with a supervising physician if they are properly registered. If the APRN is not registered then an established protocol will still be required. The term Health Care Provider has been re-defined to mean a physician, osteopathic physician, podiatric physician or an APRN registered under Florida Statute §464.0123.

 

Registering your Autonomous Practice

Autonomous Practice is defined as an advanced nursing practice by an advanced practice registered nurse who is registered under Florida Statute §464.0123 and who is not subject to supervision by a physician or a supervisory protocol. In order to be registered by the Board of Nursing as an autonomous practice the APRN has to demonstrate the following:

  1. Hold an active and unencumbered license to practice advanced nursing.
  2. Not be subject to any disciplinary action in Florida or any other state or territory within the 5 years immediately preceding the registration filing.
  3. Completed in any state, territory or jurisdiction of the United States, at least 3,000 clinical practice hours within the 5 years immediately preceding the registration request while practicing as an APRN under the supervision of an M.D. or D.O.
  4. Completed within the past 5 years 3 graduate-level semester hours, or the equivalent, in differential diagnosis and 3 graduate-level semester hours or the equivalent, in pharmacology.
  5. And any other additional registration requirements issued by the Board of Nursing.

 

After obtaining your registration certificate, an APRN must biennially renew the registration, which must coincide with the APRNs biennial renewal period for licensure. To renew the registration, an APRN must complete at least 10 hours of continuing education, in addition to completing 30 hours of usual continuing education requirements.

 

Financial Responsibility

An APRN registered to maintain an autonomous practice must demonstrate that they are financially responsible to pay claims and costs that may arise out of their rendering of care, treatment or services. An APRN can demonstrate this in one of two ways:

  1. Obtain and maintain professional liability coverage in an amount not less than $100,000 per claim, with a minimum annual aggregate of not less than $300,000.
  1. Obtain and maintain an unexpired, irrevocable letter of credit in an amount of not less than $100,000 per claim, with a minimum aggregate availability of credit of not less than $300,000, payable to the APRN.

 

These financial responsibility requirements do not apply to: (1) registered APRNs who practice exclusively for the Federal Government or the state; (2) APRNs who are inactive; (3) APRNs practicing only in teaching environments at an accredited school or teaching hospital; and (4) an APRN who is registered but is not engaged in autonomous practice.

 

Registered APRN Permitted Activities

A registered APRN may only establish an autonomous practice in primary care, including family medicine, general pediatrics, and general internal medicine. APRNs certified as nurse midwives may engage in the practice of midwifery in accordance with Florida Statute §464.012(4)(c). APRNs engaging in autonomous practice must provide information in writing to a new patient about his or her qualifications and the nature of the autonomous practice before or during the initial patient encounter.

A registered APRN may also (1) admit a patient to a health care facility; (2) manage the care that the patient receives at the facility: and (3) discharge the patient from the facility, unless prohibited by federal law. The ARPN may provide a signature, certification, stamp, etc., that is otherwise required by law to be provided by a physician so long as the APRN is not issuing a physician certification.

 

Adverse Incidents and Disciplinary Actions

Registered APRNs must report adverse incidents to the Department of Health in writing within 15 days after the occurrence of the adverse incident if the adverse incident occurred when the patient was in the direct care of the APRN. If not in the direct care of the APRN, the report must be postmarked within 15 days after the APRN discovered or reasonably should have discovered the occurrence of the adverse incident. An adverse incident occurs when a patient: (a) is transferred from the APRN practice location to a hospital; (b) suffers permanent physical injury; and/or (c) dies.

A registered APRN may be subject to disciplinary action if he or she:

  1. Pays or receives a kickback or any type of split-fee arrangement for referring patients to providers for healthcare goods or services.
  2. Uses their influence to engage a patient in sexual activity.
  3. Makes deceptive, untrue or fraudulent representations.
  4. Solicits patients by use of fraud, intimidation or undue influence.
  5. Fails to maintain legible medical records
  6. Uses their influence to exploit the patient for financial gain.
  7. Performs unauthorized professional services.
  8. Performs experimental therapies or procedures without first obtaining fill informed consent.
  9. Delegates professional responsibilities to a person that is not qualified by training to perform those activities.
  10. Acts in a manner that coerces or intimidates another APRN from advertising his or her services.
  11. Advertises that they have a certification that he or she has not received.
  12. Fails to inform patients about their rights and how to file a complaint.
  13. Provides deceptive or fraudulent expert witness testimony.

 

Conclusion

There are many other requirements that an APRN has to comply with in order to legally establish and operate their autonomous practice in Florida. As more APRNs register I’m confident that additional laws and/or rules will be created to further regulate the practice area. It is important to hire a health law attorney who has the requisite experience, knowledge and training required to help you navigate the laws.

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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.

Criminal Liability for Rationing Medical Equipment During the Coronavirus Pandemic

Recently, a physician client called me and she was very concerned about potentially being charged with murder for rationing medical equipment, such as ventilators, during the COVID-19 Pandemic. She had been instructed by superiors to use the ventilators, which were in scarce supply, only on those patients that had the best chance of recovery. For the others, she would effectively be sentencing them to death and this caused added stress to an already stressful situation. I took the time to alleviate her concerns about potential liability and thought that I would share it with you as well.

 

  1. Can I Be Convicted of Murder for Rationing Medical Equipment?

 

In Florida, Excusable Homicide is defined as “the killing of a human is excusable, and therefore lawful when the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent.” I am not a criminal law attorney, but I believe that a physician could use Excusable Homicide as a defense in the very unlikely event that he finds himself in a position where murder charges were brought against him in connection with the death of a patient who didn’t receive certain medical treatment due to equipment rationing.

Florida has 3 different degrees of murder but I will only discuss the most serious, first-degree murder. First degree murder is defined as any intentional murder that is willful and premeditated. For a first-degree murder conviction, premeditation and deliberation must be proven. This doesn’t mean that a specific period of time must be involved in the planning of the murder. A prosecutor would only have to show that the perpetrator had enough time to consciously form a plan to commit the act with the intent to kill while also having enough time for a reasonable person to stop themselves from committing the act. It is not the intent of a healthcare provider to kill a patient when they ration medical equipment or supplies. They have limited resources and are making the best use of those resources given the circumstances. Absent any evidence to the contrary, I believe that any deliberation by the provider would be about prolonging human life and not willfully ending it. This is why I’m confident that no healthcare providers will be charged or convicted of first-degree murder, or any of the lesser degrees, for rationing of medical equipment during this pandemic.

  1. Can I Refuse to Provide Emergency Treatment to a Patient During the Pandemic?

 

The most obvious situation when a physician can refuse treatment is if the physician does not treat patients with the patient’s specific condition. In 1986, President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (“EMTALA”) into law. The legislative intent of the law was very straightforward. A hospital with an emergency department could not turn away patients needing care because of their inability to pay. Hospitals are also prohibited from “dumping” patients onto other facilities for reasons other than receiving advanced treatment. Under EMTALA, if a patient presents herself to an ED with an emergency condition the ED is required to stabilize and treat the patient, regardless of her ability to pay. It’s important to note that a hospital may correctly follow EMTALA guidelines but still be responsible for malpractice damages if they misdiagnose a patient.

There may be situations where a hospital and its physicians do not have the capability to fully stabilize and treat a patient. In those situations, EMTALA allows a hospital to transfer the patient to get the appropriate level of care. For example, if a hospital is short on ventilators due to the Coronavirus that hospital may transfer the patient to another hospital that has an available ventilator so long as the patient is stable enough to physically handle the transfer and they’ve received informed consent.

Under EMTALA, a patient cannot directly sue a physician or hospital for not complying with EMTALA’s requirements, but physicians may be subject to civil monetary penalties and may be subject to exclusion from participation in the Medicare and Medicaid programs for repeated violations of EMTALA.

  1. Prohibited Activities and Liability during the Coronavirus Pandemic

 

Under Florida Statute §458.3295(1), which is titled “Concerted effort to refuse emergency room treatment to patients; penalties”, A Florida licensed physician may not instigate or engage in a concerted effort to refuse or get physicians to refuse to render services to a patient or patients in a hospital emergency room by failing to report for duty, absenting themselves from their positions, submitting their resignations, abstaining from the full and faithful performance of their medical duties, or otherwise causing conduct that adversely affects the services of the hospital. For the purposes of this subsection, the term “concerted” means contrived or arranged by agreement, planned or devised together, or done or performed together in cooperation.

Under Florida Statute §395.1041, Neither the hospital nor its employees, nor any physician, dentist, or podiatric physician are liable if a refusal to render emergency services or care is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services. If a hospital does not have capacity, the necessary medical equipment or supplies to treat a patient due to the Coronavirus pandemic, the hospital and its providers cannot be held liable for refusing to render certain emergency services or care.

  1. Final Thoughts

 

Presently, we are dealing with an extremely unusual set of circumstances and difficult decisions have to be made. The reality is that we have to ration the ventilators. We have over 350 million people in this country and estimates are that 40-60% of the population have or will contract COVID-19. Italy, Spain, France and China have had to ration their ventilators. Even healthcare providers are becoming sick and are using the ventilators.

The federal government, so far at least, is not providing national rationing guidelines for the coronavirus outbreak other than those issued by the CDC, HHS and VA. The Centers for Disease Control and Prevention has laid out general principles for how to allocate scarce resources in a pandemic response plan, but it leaves most of the details to individual states and institutions. States are coming up with their own ethical principles to determine need, while others are prioritizing patients based on their health condition, preexisting health problems and age. Countries around the world are doing the same thing. It’s not a first-come first-serve model right now. Hospitals are transferring patients to less crowded hospital or healthcare facilities, sanitizing and reusing supplies, coming up with makeshift ventilators, cancelling elective surgeries and procedures etc. Anything they can do to treat patients. To avoid conflicts of interest and the emotional toll of life-or-death judgments, many state plans call for a senior, supervisory doctor or a panel of doctors — similar to a “three wise men” protocol developed in Britain for this scenario — who are not the provider directly caring for the patient.

The Coronavirus Pandemic has been compared to a war and our doctors and nurses are the front line of defense. They’re our soldiers in this battle. They are basically operating under combat medicine guidelines, which means that they have to triage patients and prioritize care in a discriminate way based upon their chances of recovery but not discriminatorily. I can’t imagine a scenario where a prosecutor would bring charges against a physician for making the difficult decisions that they had to make during this pandemic. Even if they do, I doubt that a jury of their peers would find them guilty of murder given the circumstances. When this pandemic is behind us, I don’t believe that any healthcare providers will be charged or convicted of murder for rationing any medical equipment or supplies.

 

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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.

Buyer Beware: Successor Liability Issues When Purchasing a Physician Practice

If you’re purchasing a physician practice or any other type of Florida healthcare entity you must ensure that you have structured the acquisition in such a way that you are not inheriting the liabilities of the previous owner. To do so, you must conduct a thorough due diligence process and draft the appropriate agreements.

In Florida, a purchaser is generally not liable for the debts and liabilities of the seller unless the purchaser expressly (or impliedly) agrees to assume such debts and liabilities. Successor liability has the potential to become an issue when you purchase any existing company. The purchaser has the option to limit the assumption of liabilities of the seller by structuring the acquisition in a specific way. By doing so, the purchaser won’t be responsible for paying the seller’s debts and liabilities. Typically, in a “stock” purchase you are responsible for all liabilities and debts of the company, while in an “asset” purchase you are only assuming those liabilities and debts that you specifically agree to assume.

 

Stock vs. Asset Purchase

  1. Stock In a stock purchase you are acquiring the stock of the seller’s company. The essence of the acquired company does not change other than the fact that it has a new owner. All of the assets (unless otherwise stated) as well as its debts and liabilities stay the new owner, whether they’re known or unknown at the time of the sale. This is what is called “stepping into the shoes” of the previous owner.

 

  1. AssetIn an asset purchase you create a business entity (i.e. an LLC or Corporation) to purchase specific assets and liabilities of the seller’s company. These are called “Acquired Assets”. This is different from a stock purchase where you are buying the entire company and not just pieces of the company. The seller’s company may remain in place after the asset purchase and they can continue to run it independently absent the assets and liabilities that they have sold to the purchaser. Alternatively, the seller may choose to close their business or sell other assets of the company to another purchaser or both.

 

Automatic Assumption of Liability Even in an Asset Purchase

Most healthcare entity acquisitions are structured as asset purchases to avoid the assumption of the all liabilities. However, there are instances where a purchaser still assumes certain liabilities by operation of law even when it is an asset purchase.

  1. Doctrine of Successor LiabilityA purchaser assumes liabilities if the acquisition was done to purposely undermine the business interests of creditors. A purchaser strips the entity of its most valued assets and transfers them to another entity for a nominal purchase price so that when the creditor sues the defaulting original company there are no valuable assets for them to force the sale of to recoup their losses.

 

  1. TaxesIf one of more of the assets that you are acquiring through an asset purchase has a pre-existing tax lien or UCC filing, your asset purchase agreement will not automatically extinguish those obligations. Those obligations will be paramount to your purchase and will have to be dealt with accordingly.

 

Exceptions to the Purchase Agreement

  1. De Facto Merger ExceptionThis exception will be triggered if you answer “yes” to any three or more of the following questions: (1) Is there a continuation of the enterprise? (2) Is there a continuity of shareholders? (3) Has the selling company ceased its ordinary business operations? (4) Has the purchasing company assumed the seller’s obligations?

 

  • Continuation of the enterprise– Exists when the physical location, directors, officers, assets, management, employees, etc. are the same (or substantially similar) between both the seller and purchaser.

 

  • Continuity of shareholders– Exists when the same (or substantially similar) shareholders/owners exist in both the companies.

 

  • Cessation of operations– Exists when the seller ceases to conduct its business after the sale of the assets.

 

  • Assumption of obligations– If the purchase agreement doesn’t clearly stipulate which obligations will be assumed by the purchaser (i.e. vendor agreements, leases, etc.) the purchaser may become liable for the seller’s obligations.

 

  1. Mere Continuation ExceptionIs triggered if only one company exists after the transfer of assets and the same stockholders and directors are present in both companies.

 

  1. Fraudulent Transaction ExceptionThis occurs when the owners of the purchasing company are transferred to the seller’s owners as payment for the assets. This is an attempt to escape certain debts and obligations of the seller company.

 

Conclusion

It is critically important that you hire an experienced business law attorney who has drafted these agreements specifically for healthcare entities. This attorney must conduct a thorough due diligence process which includes a lien and title search, review of recorded business loans and determine whether there are any outstanding state sales and gross receipt taxes.

 

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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.

Coronavirus (Covid-19) Creates Opportunities for Use of Telehealth in Florida

I. Introduction

For several years, we have discussed the practical benefits of using Telehealth or Telemedicine as a supplement to traditional medical care and not as a replacement. However, we are facing a moment in history where Emergency Rooms are becoming increasingly overwhelmed and don’t have the staff, resources, healthcare professionals, respirators, ventilators and other equipment necessary to adequately and expeditiously treat patients.  Telemedicine is becoming more essential now that countries around the world are paralyzed due to the spread of the Coronavirus which has resulted in a pandemic.

Telemedicine is useful for those individuals who are unable or unwilling to travel to their healthcare provider while allowing them to receive the same level of care and treatment through the use of medical technology. Telemedicine is particularly useful during times like this when individuals have to self-quarantine and when a State of Emergency has been issued as a measure to minimize the spread of the virus. Telemedicine may have the ability to assist healthcare professionals by remotely diagnosing conditions, such as the Coronavirus without putting the health of others in jeopardy. The Coronavirus can cause respiratory problems, among others, and the elderly and those with pre-existing conditions regardless of age are particularly susceptible to the effects of contracting the virus, including death.

II. Florida Law

Now is as good a time as any for those who are interested in incorporating Telehealth into their practice to become familiar with the Florida laws that govern its use. Prior to the passage of House Bill 23 (Chapter 2019 – 137), the Standards for Telemedicine practice were governed by Florida Administrative Code 64B8-9.0141 (for Medical Doctors) and 64B15-14.0081, which have since been repealed and replaced by this House Bill and Florida Statute §456.47.

          A. What is Telehealth under H.B. 23

“Telehealth” is defined as the use of synchronous or asynchronous telecommunications technology by a telehealth provider to provide healthcare services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. The term does not include audio-only telephone calls, email messages, or facsimile transmissions. A “Telehealth Provider” means any individual who provides healthcare and related services using telehealth and who is licensed or certified under the appropriate Florida Statute or who is licensed under a multi-state health care licensure compact of which Florida is a member state or is a registered out-of-state telehealth provider. A telehealth provider and a patient may be in separate locations when telehealth is used to provide healthcare services to a patient. It should be noted that it is not a violation for a non-physician telehealth provider using telehealth and acting within his or her relevant scope of practice.

          B. Telehealth Prescribing and Recordkeeping

A telehealth provider may not use telehealth to prescribe a controlled substance unless the controlled substance is prescribed for the following: (1) the treatment of a psychiatric disorder; (2) inpatient treatment at a hospital; (3) the treatment of a patient receiving hospice services: or (4) the treatment of a resident of a nursing home facility.

A telehealth provider must document in the patient’s medical record the healthcare services rendered using telehealth according to the same standard as used for in-person services. Medical records, including video, audio, electronic, or other records generated as a result of providing such services are confidential and must comply with HIPAA requirements.

          C. Out-Of-State Telehealth Providers

                1. Registration of Out-Of-State Telehealth Providers

A healthcare professional not licensed in Florida may provide healthcare services to a patient located in this state using telehealth if the healthcare professional registers with the applicable board and provides those healthcare services within the applicable scope of practice established by Florida law. In order for an out-of-state healthcare professional to be registered they have to prove or complete the following: (1) complete an application to provide telehealth services as an out-of-state provider; (2) have an unencumbered occupational license that was issued by another state, the District of Columbia, or a possession or territory of the United States and that is substantially similar to the license issued to a Florida-licensed provider. Foreign trained providers without a valid Florida-professional license are ineligible to register to provide telehealth services in Florida; (3) has not been the subject of disciplinary action relating to his or her license during the 5-year period immediately preceding the submission of their application; (4) designates a duly appointed registered agent for service of process in this state; and (5) demonstrates to the board that he or she maintains professional liability coverage or financial responsibility.

A healthcare professional may not register if his or her license to provide healthcare services is subject to a pending disciplinary investigation or action, or has been revoked in any state or jurisdiction. If you are a duly registered healthcare professional, you must notify the appropriate board of any restrictions placed on your license to practice, or any disciplinary action taken or pending against you, from any state or jurisdiction within 5 days after the restriction is placed or disciplinary action is initiated or taken.

               2. Insurance Coverage

As noted above, a registered provider must maintain professional liability coverage or proof of financial responsibility, that includes coverage or financial responsibility for telehealth services provided to patients not located in the provider’s home state.

               3. Physical Presence

An out-of-state healthcare professional may not open an office in Florida and may not provide in-person healthcare services to patients located in this state.

               4. Disciplinary Action Against Out-Of-State Telehealth Provider

The board may take disciplinary action against an out-of-state telehealth provider if the registrant: (1) fails to notify the applicable board of any adverse actions taken against his or her license; (2) has restrictions placed on or disciplinary action taken against his or her license in any state or jurisdiction; (3) violates any of the requirements of this section; or (4) commits any act that constitutes grounds for disciplinary action under the applicable practice act for Florida-licensed providers. Disciplinary action may include suspension or revocation of the provider’s registration or the issuance of a reprimand or letter of concern. A suspension may be accompanied by a corrective action plan the completion of which may lead to the suspended registration being reinstated according to the rules adopted by the board.

          D. Venue

Any act that constitutes the delivery of health are services is deemed to occur at the place where the patient is physically located at the time the act is performed or in the patient’s county of residence.

          E. Exemptions

A healthcare professional who is not licensed to provide healthcare services in this state but who holds an active license to provide healthcare services in another state or jurisdiction, and who provides healthcare services using telehealth to a patient located in this state, is not subject to the registration requirement if the services are provided: (1) in response to an emergency medical condition; or (2) in consultation with a healthcare professional licensed in this state who has ultimate authority over the diagnosis and care of the patient.

          F. Reimbursement for Telehealth Services

A contract between a health insurer issuing major medical comprehensive coverage through an individual or group policy and a telehealth provider must be voluntary between the insurer and the provider and must establish mutually acceptable payment rates or payment methodologies for services provided through telehealth. Any contract provision that distinguishes between payment rates or payment methodologies for services provided through telehealth and the same services provided without the use of telehealth must be initialed by the telehealth provider.

 

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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.

Closing your Medical Practice? Don’t forget to Wind Up!

You’ve decided that now is the time to close your healthcare entity (i.e. Medical Practice) for any number of reasons. However, you can’t simply close the doors and just walk away. There are a few steps that you need to take in order to comply with Federal and Florida law. One of the requirements is that you “wind up” your limited liability company (“LLC”).

After you’ve dissolved the company the company continues only for the purpose of winding up. During this process the LLC is required to discharge or make provisions for the company’s debts, obligations and other liabilities, as well as, settling and closing the company’s activities and affairs, including distribution of the assets of the LLC.

You may also have to prosecute and defend certain legal actions and proceedings even after dissolution, whether civil, criminal or administrative. The company would have to settle any disputes by mediation or arbitration and transfer title to the company’s real estate and other property.

If the dissolved company has no members (i.e. death of sole shareholder), the legal representative of the last person to have been a member may wind up the activities and affairs of the company. If the legal representative declines to do so, a person may be appointed to do so by the consent of the transferees owning a majority of the rights to receive distributions as transferees at the time the consent is to be effective. Alternatively, a circuit court judge may order judicial supervision of the winding up of a dissolved LLC, including the appointment of one or more people to wind up the company’s activities and affairs. The person appointed by the court may also be designated trustees for or receivers of the company with the authority to take charge of the LLC’s property and to do all other acts that might be done by the LLC which may be necessary for the final settlement of the unfinished activities and affairs of the company. The powers of the trustees or receivers may be continued as long as the court deems necessary.

The dissolved company that has completed winding up may submit a statement of termination to the Department of Business Regulations including: (a) the name of the LLC; (b) the date of filing of its Articles of Organization; (c) the date of filing of its articles of dissolution; (d) the LLC has completed winding up its activities and affairs and has determined that it will file a statement of termination; and (e) other information as determined by the authorized representative.

Finally, the trustees may distribute property of the limited liability company discovered after dissolution, convey real estate and other property and take such other action as may be necessary on behalf of and in the name of the dissolved LLC.

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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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