facebook

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.

 

*****************************************************

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.

 

*****************************************************

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.

***************************************************************************************************************

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.

Dissociation of a Partner in a Healthcare Entity or Medical Practice

You’ve found yourself in a very common situation where one or more partners in your healthcare business (i.e. medical practice) wants to resign or dissociate from the entity. There could be any number of reasons that would motivate a person to do so. You may handle the personal fallout from this situation in any manner that you choose. However, there are still certain legal requirements that you must adhere to when a partner chooses to dissociate from a limited liability company.

Events Causing Dissociation

This is not an exhaustive list but a person is dissociated as a member if any of the following occur:

  • The company received notice of the person’s express will to withdraw as a member
  • An event stated in the operating agreement as causing the person’s dissociation occurs.
  • Person’s entire interest is transferred in a foreclosure sale.
  • The member is expelled pursuant to the operating agreement, by unanimous consent of the other members, or by judicial order.
  • Death or becomes incapable of performing their duties.
  • Becomes bankrupt, acquiesces in the appointment of a trustee, receiver or liquidator or the person or of substantially all of their property.
  • The company dissolves and completes winding up.

 

Statement of Dissociation

In order to dissociate from a limited liability company (“LLC”) you may file a statement of dissociation with the Florida Department of State’s Division of Corporations. (“Department) Your statement should: (a) list the name of the LLC; (b) name and signature of the dissociating member; (c) date the member withdrew or will withdraw; and (d) a statement that the company has been notified of the dissociation in writing. If you are the manager in a manager-managed LLC you may file a statement of resignation in the same manner.

 

Effect of Dissociation

If a person is dissociated as a member they lose their right to participate as a member in the management and conduct of the company’s activities and affairs. If the LLC is member-managed, the person’s duties and obligations as a member ends with regard to matters arising and events occurring after the person’s dissociation. A person’s dissociation as a member does not, of itself, discharge the person from a debt, obligation, or other liability to the company or the other members which the person incurred while a member.

 

Liability of Members and Managers

If you are dissociating from an LLC you should understand that any debt, obligation or other liability of the LLC is solely the debt, obligation or liability of the company. The dissociating member or manager is not personally liable, directly or indirectly for a debt, obligation or other liability of the company solely by reason of being or acting as a manager or member. This is true even if the company is dissolved.

A manager in a manager-managed LLC or a member in a member-managed LLC is not personally liable for monetary damages to the LLC, its members or any other person for any statement, vote, decision, or failure to act regarding management or policy decisions by either the manager or member unless: (a) the manager or member breached or failed to perform their duties: and (b) that breach or failure constitutes any of the following:

  1. A violation of criminal law unless the manager or member had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe that their conduct was unlawful.
  2. A transaction that caused the manager or member to receive an improper personal benefit, directly or indirectly.
  3. An improper distribution.
  4. The LLC procures a judgment in its favor on the basis that their was a conscious disregard for the best interest of the LLC, or willful misconduct.
  5. Someone other than a member or the LLC brings a successful cause of action based on recklessness or an act or omission that was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

***************************************************************************

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.

The Florida Department of Health Accused me of Prostitution and Practicing without a Massage Therapy License…Now What?

What is a Massage?

According to Florida Statute, a “massage” means the manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device, or the application to the human body of a chemical or herbal preparation.

A “massage therapist” is a person licensed by the Florida Department of Health (“DOH”) who administers massages for compensation. You must be at least 18 years old, possess a high school diploma or its equivalent and completed a course of study at a board-approved massage school or apprenticeship program in order to qualify for licensure as a massage therapist.

An “apprentice” means a person approved by the board to study massage under the instruction of a licensed massage therapist. A “designated establishment manager” is a Florida licensed massage therapist who is responsible for the operation of a message establishment and is designated as such with the DOH.

 

Massage Establishment Licensure Requirements

A massage establishment may only operate if it has received a license to do so by the DOH. If the DOH determines that the proposed establishment would fail to meet the standards of the Board of Massage Therapy (“Board”) the DOH must deny the application for license in writing and list the reason for the denial. The applicant has the opportunity to correct any deficiencies and reapply for licensure. If you show that you can reasonably meet the standards of the DOH for the operation of a massage establishment then the DOH will grant the license once the licensing fee is paid, subject to any restrictions that the DOH may impose.

A massage establishment license issued to an individual, partnership, corporation or limited liability company may not be transferred from the licensee to another individual, partnership, etc. However, a license may be transferred from one location to another after inspection and approval by the Board and payment of the inspection fee. Additionally, a license may be transferred from one business name to another after approval by the board and payment of the fee.

A massage establishment must have a designated establishment manager. Failure to have a designated establishment manager practicing at the location of the establishment will result in suspension of the establishment license.

By January 1, 2021, a massage establishment must implement a procedure for reporting suspected human trafficking to the National Human Trafficking Hotline or to a local law enforcement agency and must post in a conspicuous place within the establishment, which is accessible to employees a sign with the relevant provisions of the reporting procedure.

 

Documents Required while working in a Massage Establishment

Any person that is employed by a massage establishment and any person performing massages must provide to any DOH investigator or law enforcement officer a valid form of government identification while in the establishment. Examples of valid identification includes an unexpired driver license or identification card issued by any state or territory of the United States, a valid and unexpired United States passport, green card, employment authorization card, or a naturalization certificate.

If you operate a massage establishment you must provide a valid form of government identification and a copy of valid government identification for each employee and any person performing massages in your establishment. If you fail to provide these documents you can be punished with a maximum of 60 days in jail and/or a maximum fine of $500 for your first violation.

Prohibited Acts and Grounds for Discipline

  1. Valid License to Practice

No one may hold oneself out to the public as a massage therapist or practice massage therapy without a valid license to do so or special exemption from licensure. You may not operate a massage establishment without first receiving a license from the DOH. The owner of a massage establishment must not: (a) permit an employed person to practice massages without license to do so; (b) present as his or her own the license of another person; (c) allow the use of his or her license by an unlicensed person; (d) give false or forged evidence to the DOH in obtaining any license; and (e) falsely impersonate another license holder. If you do any of the aforementioned acts you may be found guilty of a misdemeanor of the first degree, which is punishable by imprisonment up to one year and/or a maximum fine of $1000 per occurrence.

 

2. Action Against your License

According to Florida Statute §480.046(1)(b), you may be subject to discipline by the DOH if your license to practice massage therapy has been revoked, suspended or otherwise acted against by the licensing authority of another state, territory or country. This means that if your license in New York is suspended then the Florida DOH may or may not decide to suspend your license as well or worse based on the facts and other circumstances. Other common acts that constitute grounds for discipline include, but are not limited to, (i) false, deceptive or misleading advertising; (ii) conviction of a crime in any jurisdiction which directly relates to the practice of massage or the ability to practice massage; (iii) attempting to induce or engage a client in unlawful sexual misconduct through advertising; (iv) aiding or assisting any unlicensed person to practice massage therapy; (v) being unable to practice massage with reasonable skill and safety due to illness or use of alcohol, drugs, narcotics, chemicals or any other material that impairs your mental or physical condition; (vi) practicing beyond the scope permitted by law when the licensee knows or has reason to know she is not competent to perform; (vii) delegating professional responsibilities to a person that the licensee knows or has reason to know is not qualified to perform; (vii) refusing to allow DOH inspector to inspect your massage establishment during regular business hours; (ix) failing to maintain clean and sanitary conditions in your massage establishment; and (x) practicing at a place that is not duly licensed as a massage establishment except for at the residence or office of a client, sports event, convention or a trade show.

 

3. Prostitution

Prostitution means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses. It is unlawful to (a) own, establish, maintain, or operate any place for the purpose of prostitution; (b) offer or agree to secure another for the purpose of prostitution; (c) receive or agree to receive any person into any place for the purpose of prostitution or to permit any person to remain there for that purpose; (d) to solicit, induce, entice or procure another to commit prostitution; and (e) to purchase the services of any person engaged in prostitution.

DOH must issue an Emergency Order to suspend the license of a massage therapist or establishment if the DOH is notified that the massage therapist or any person with an ownership interest in the establishment has been found guilty of or has entered a guilty plea or nolo contendere, regardless of the adjudication, of any of the following felony offenses in this state or any other jurisdiction: kidnapping, false imprisonment, luring or enticing a child, human trafficking, human smuggling, sexual battery, relating to procuring a person under the age of 18 for prostitution, selling or buying of minors into prostitution, coercing another to become a prostitute, deriving support from the proceeds of prostitution, sexual performance by a child, transmission of material harmful to minors to a minor by electronic device or equipment, and lewd or lascivious acts committed upon or in the presence of a person under the age of 16 or any elderly or disables person, to name a few.

 

4. Penalties

If you perform any of the prohibited acts the DOH will deny your license or impose other penalties against an applicant for licensure. The DOH will revoke or suspend the license of the massage establishment if any jurisdiction has entered a final order or other disciplinary action taken for sexual misconduct involving prostitution, crimes related to the practice of massage therapy involving prostitution or a conviction or plea of  guilty or nolo contendere to any misdemeanor or felony crime related to prostitution. If this occurs, the establishment owner may not reapply for an establishment license and may not transfer the license. The designated establishment manager who was found to have committed one or more of these acts may not reapply for a license.

 

5. Hours of Operation

A person may not operate a massage establishment between the hours of midnight and 5 a.m. unless your establishment is located in a healthcare facility, healthcare clinic, hotel, motel, or bed and breakfast, a timeshare property, public airport or a pari-mutuel facility.

Notice from DOH Regarding Unlicensed Massage Therapy Activity

You will receive a Case Summary along with the notice, which will list all of the possible violations, the contact information for the informant (if available), the date that the report/complaint was received by DOH and any investigation notes available at that time. The Investigative Services Report will list Massage Establishment Requirements generally and whether or not you have met those requirements.

The DOH notice usually gives you 20 days after receiving the letter to either (1) submit a written response or (2) call DOH’s office to schedule an interview. Additionally, they ask for you to provide your curriculum vitae and specialty even if you choose not to submit a written response. Subsequently, a Probable Cause Panel will convene to determine whether based on the evidence before them that a violation has occurred. You can make a written request for a copy of the investigative file after the investigation is complete regardless of whether the Probable Cause Panel decided that you have committed a violation.

It is not mandatory to submit a written response to the Department of Health and you have the right to be represented by an attorney. However, depending on the circumstances, you may want to provide supporting documents to the DOH otherwise all the investigators (and potentially the Probable Cause Panel) have to go off of is the investigation notes. If you do submit a written response it becomes part of the public record and absent extenuating circumstances it can likely be used against you in an administrative proceeding before an Administrative Law Judge. Keep in mind that in order to alleviate DOH and the Board’s concerns about the alleged activity that there will be an unannounced re-inspection of the establishment at some point. It is important that any perceived violations do not remain during that re-inspection period or else you risk receiving an Administrative Complaint where the DOH may try to take significant action against your license.

 

Conclusion

The DOH and law enforcement officers are making significant efforts to investigate and arrest people who are engaging in human trafficking and prostitution in massage establishments. In determining what action is appropriate the Board must consider what sanctions are necessary to protect the public. Typically, if the ground for disciplinary action is the first-time violation of a practice act for unprofessional conduct and no actual harm to the patient occurred, The Board, must issue a citation in accordance and assess a penalty. If the Board determines that revocation of a license is the appropriate penalty, the revocation is permanent. However, the Board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked.

**************************************************************************************

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.

 

How Can A Foreign Trained Doctor Obtain A Florida Medical License?

Doctors from around the world may decide that they would like to practice medicine in the State of Florida. Maybe it’s because of the beautiful weather and white sandy beaches, no state income taxes, its proximity to Latin America and the Caribbean, large immigrant and tourist population and Florida’s world-renowned hospitals and healthcare providers. No matter the reason, the process of moving to Florida to practice medicine has its challenges. These challenges may seem insurmountable without guidance from experienced attorneys. There’s a two-step process to practicing medicine in Florida: (1) the immigration visa process and (2) obtaining your license to practice medicine in Florida.

 

Certification and Residency Programs

Foreign Doctors wishing to practice clinical medicine in an unsupervised setting must be licensed by the Florida Board of Medicine (or Board of Osteopathic Medicine). All Doctors including those trained outside the U.S. are required to pass all four tests of the United States Medical Licensing Exam (USMLE) in order to obtain their Florida Medical License. International Medical Graduates (IMG) must be certified by the Educational Commission for Foreign Medical Graduates (ECFMG). To become certified by ECFMG, an IMG must pass three USMLE exams, consisting of 1 multiple choice exam and two separate exams testing clinical knowledge and clinical skills.

Once a doctor receives ECFMG certification, she may apply for a hospital residency. The Electronic Residency Application Service (ERAS) is the most common way for doctors to enter into a residency program, which can last from three to eight years depending on the specialty that the IMG is seeking. Doctors have to complete a residency program regardless of their overseas training. IMGs who have received a visa are eligible to apply for a residency program in the United States.

Doctors are encouraged to apply to a minimum of 20 or more programs to increase their odds of “matching” or being accepted into a residency program. Registration can be completed through the National Resident Matching Program (NRMP), which can match you to a residency program based on individual preferences.

 

Licensure by Examination

According to Fla. Stat. §458.311, Any person desiring to be Florida licensed physician, who does not hold a valid license in any state may submit an application to the Florida Department of Health (DOH). The DOH has to certify that the person has: (a) completed the application form and paid the application fee; (b) is at least 21 years of age; (c) is of good moral character; (d) has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician; and (e) if you graduated from medical school after October 1, 1992 you can prove that you have completed the equivalent of 2 academic years of pre-professional, post-secondary education prior to entering medical school.

Additionally, there are several medical education and postgraduate training requirements. A foreign doctor may satisfy this requirement if they can show that they graduated from an allopathic (or osteopathic) foreign medical school registered with the World Health Organization and certified pursuant to Florida statute as having met the standards required to accredit medical schools in the United States or reasonably comparable standards. If the language of instruction of the foreign medical school is other than English, the doctor must demonstrate competency in English through presentation of the ECFMG English proficiency certificate or by a satisfactory grade on the Test of Spoken English of the Educational Testing Service or similar test approved by the rule of the board. Finally, they must have completed an approved residency of at least 1 year.

Alternatively, if the doctor graduated from an allopathic foreign medical school which has not been certified pursuant to Florida statute, she may still be eligible if she has had her medical credentials evaluated by the ECFMG, holds an active, valid certificate issued by the ECFMG and has passed the examination used by the ECFMG. The doctor is also required to have completed an approved residency of at least 1 year, unless they graduated after October 1, 1992, then the applicant is required to have completed and approved residency or fellowship of at least 2 years in one specialty area.

The applicant also has to submit their fingerprints to the DOH for a criminal background check to be conducted. The Board of Medicine will not certify to the DOH any applicant for licensure who is under investigation in another jurisdiction for an offense which would constitute a violation of the laws pertaining to medical doctors until the investigation is completed.  Finally, the applicant has to obtain a passing score on the USMLE.

In spite of those doctors who have graduated from foreign medical schools which have not been certified pursuant to Florida statute, a graduate of a foreign medical school is not required to present the certificate issued by the ECFMG or pass the examination utilized by the ECFMG if they have: (a) received a bachelor’s degree from an accredited United States college or university; (b) studied at a medical school which is recognized by the World Health Organization; (c) completed all of the formal requirements of the foreign medical school, except the internship or social service requirements, and has passed part I of the National Board of Medical Examiners examination or the ECGMG examination equivalent; and (d) has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the ECFMG examination equivalent.

 

Licensure by Endorsement

According to Fla. Stat. §458.313, a doctor can obtain a Florida medical license by endorsement if they apply and the board certifies that: (a) she has met the requirements of paragraphs (b)-(g) for licensure by examination; (b) obtained a passing score on the USMLE after January 1, 2000; and (c) has submitted evidence of active licensed practice of medicine in another jurisdiction, for at least 2 of the immediately preceding 4 years, or evidence of successful completion of either a board-approved postgraduate program within 2 years preceding filing of an application or a board-approved clinical competency examination within the year preceding the filing of an application for licensure.

“Active licensed practice of medicine” means the practice of medicine by physicians, including those employed by any governmental entity in community or public health, medical directors who are practicing medicine, and active teaching faculty of an accredited medical school. The Board of Medicine may require an application for licensure by endorsement to take and pass the appropriate licensure examination prior to certifying the applicant as eligible for licensure.

 

Conclusion

 There are tens of thousands of unlicensed foreign-trained doctors throughout the U.S. who have medical training and experience but are unable to practice in the United States. By the year 2030, experts anticipate that the US will be facing a shortage of roughly 100,000 doctors throughout the country. Spanish-speaking doctors and other foreign language speaking doctors are in high demand. Unfortunately, thousands of foreign doctors living in the US are working as waiters, parking garage attendants and other jobs that don’t utilize their medical training because they are unable to obtain their license. Florida lawmakers have used Fla. Stat. §456.021(1) to express their desire to encourage the use of foreign-speaking Florida residents duly qualified to become actively qualified in their professions so that all people of this state may receive better services. To this end, legislators passed a law stating that all persons who have successfully completed their studies and are deemed qualified for examination for a professional license must take that examination in English unless 15 or more applicants request that examination be administered in their native language. If you are able to obtain a Florida medical license you would be helping to alleviate the physician shortage and provide healthcare services to those who are in desperate need of doctors who speak the same language and have similar cultural backgrounds.

*************

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.

Can a Physical Therapist or Chiropractor “Opt-Out” of Medicare?

Photo courtesy of Chiropractic Natural Care Center

As of November 1, 2019,  a physical therapist or chiropractor,  are unable to “opt-out” out Medicare. If you look at this chart you will see that physical therapists and chiropractors are not listed as providers who are able to opt out. The Medicare Benefit Policy Manual: Chapter 15 Section 40.4 states Physical therapists in independent practice and occupational therapists in independent practice cannot opt out because they are not within the opt out law’s definition of either a “physician” or “practitioner”. A non-opt-out provider, is required to submit a claim for any item or service that is, or may be, covered by Medicare.

The only situation in which they are not required to submit claims to Medicare for covered services is where a beneficiary or the beneficiary’s legal representative refuses, of his/her own free will, to authorize the submission of a bill to Medicare.

In some circumstances, a non-opt-out provider is required to provide an Advance Beneficiary Notice of Noncoverage (ABN) to the beneficiary prior to rendering an item or service that is usually covered by Medicare but may not be covered in this particular case. The ABN notifies the beneficiary that Medicare will likely deny the claim and prompts the beneficiary to choose whether or not he/she will accept liability for the full cost of the services if Medicare does not pay. The beneficiary also indicates on the ABN whether or not a claim should be submitted to Medicare. Providers and suppliers must follow the beneficiary’s directive for claim submission as indicated on the ABN. Providers and suppliers will not violate the mandatory claim submission rules of §1848(g)(4) of the Social Security Act when a claim is not submitted per a beneficiary’s written request on an ABN. Where a valid ABN is given and a claim is submitted, subsequent denial of the claim relieves the non-opt-out physical therapist of the limitations on charges that would apply if the services were covered. If you are providing services that are never covered by Medicare it is not mandatory for your to provide Medicare beneficiaries with ABNs for these services but you should create your own written notice informing them of the costs for service and the fact that Medicare will not cover any part of those costs.

Photo courtesy of Miami Neurology & Rehabilitation Specialists

Photo courtesy of Miami Neurology & Rehabilitation Specialists

Because Medicare’s rules do not apply to items or services that are categorically not covered by Medicare, a private contract is not needed to furnish such items or services to Medicare beneficiaries, and Medicare’s claims filing rules and limits on charges do not apply to such items or services. For example, because Medicare does not cover hearing aids, a physician or practitioner, or other supplier may furnish a hearing aid to a Medicare beneficiary and would not be required to file a claim with Medicare; further, the physician, practitioner, or other supplier would not be subject to any Medicare limit on the amount they could collect for the hearing aid. If the item or service is one that is not categorically excluded from coverage by Medicare, but may be non-covered in a given case (for example, it is covered only where certain clinical criteria are met and there is a question as to whether the criteria are met), a non-opt-out physical therapist or chiropractor is not relieved of his or her obligation to file a claim with Medicare.

If you have no relationship with Medicare, meaning that you are not enrolled as a “Participating Provider” nor as a “Non-Participating Provider” it would only be acceptable to accept self-payments from a Medicare Beneficiary if it is a for a service that would not be covered by Medicare (i.e. not reasonable and medically necessary) or if a beneficiary or the beneficiary’s legal representative refuses, of his/her own free will, to authorize the submission of a bill to Medicare.

*************

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.

How do I Open an Assisted Living Facility in Florida?

How do I Open a Florida Assisted Living Facility?

According to the Florida Department of Elder Affairs, an Assisted Living Facility (“ALF”) is a residential care facility that provides housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. ALFs are intended to be a less costly alternative to more restrictive institutional settings for individuals who do not require 24-hour nursing supervision.

 

Determining the right Size and Location for your ALF

Florida ALFs can range in size from a single resident to hundreds and may contain individual apartments or suites that a resident shares with others.

An ALF is a “Community residential home”, which is a dwelling licensed to service residents who are clients of the Department of Elderly Affairs (“EA”), the Agency for Persons with Disabilities (“APD”), the Department of Juvenile Justice (“DJJ”), or the Department of Children and Families (“DCF”) or licensed by the Agency for Health Care Administration (“AHCA” or “Agency”) which provides a living environment for 7 to 14 unrelated residents who operate as the functional equivalent of a family, including such supervision and care by supportive staff as may be necessary to meet the physical, emotional and social needs of the residents. Examples of residents include: frail elders; a person who has a handicap; a person who has a developmental disability; a non-dangerous person who has a mental illness; a child who is found to be dependent; or a child in need of certain services.

Homes of 6 or fewer residents which otherwise meet the definition of a community residential home are considered a single-family unit and a non-commercial, residential use for the purpose of local laws an ordinance. It is important to note that, homes of 6 or fewer residents which otherwise meet the definition of a community residential home must be allowed in a single-family or multifamily zoning without approval by the local government, provided that such homes are not located within a radius of 1,000 feet of another existing such home with six or fewer residents or within a radius of 1,200 feet of another existing community residential home.

Facilities licensed for 17 or more residents are required to maintain an alert staff for 24 hours per day. The standards for facilities with 16 or fewer beds must be appropriate for a non-institutional residential environment; however, the structure may not be more than two stories in height and all residents who cannot exit the facility unassisted in an emergency must reside on the first floor.

 

Local Government Requirements

When a site for a community residential home has been selected in a area zoned for multifamily, the Agency must notify the Chief Executive Officer of the local government in writing and include in such notice: (1) the specific address of the site: (2) the residential licensing category; (3) the number of residents; and (4) the community support requirements of the program. This notice must also contain a statement from AHCA indicating the licensing status of the proposed community residential home and specify how the home meets applicable licensing criteria for the safe care and supervision of clients in the home. The local government will then review AHCA’s notification in accordance with the zoning ordinance of the jurisdiction.

Once under review, the local government may: (1) determine that the siting of the community residential home is in accordance with local zoning and approve the siting. If the siting is approved, the sponsoring agency may establish the home at the site selected.; fail to respond within 60 days. If the local government fails to respond within such time, the sponsoring agency may establish the home at the site selected.; and (3) Deny the siting of the home.

No ALF may commence any construction which will expand the size of the existing structure unless the licensee first submits to AHCA proof that such construction will be in compliance with the applicable local zoning requirements.

 

Assisted Living Facility Licenses

Every ALFs, no matter the size has to obtain a facility license from AHCA. Each application for licensure must comply with all of the general health care licensing requirements for any type of healthcare facility. Each license issued will indicate the name of the licensee, the type of provider or service that the licensee is required or authorized to operate or offer, the date the license is effective, the expiration date of the license, the maximum capacity of the licensed premises and any other information required or deemed necessary by AHCA. You will be required to take the ALF Director’s course and submit to a level II FBI background test when submitting your application.

The applicant must also identify all other homes or facilities, including the addresses and the license or licenses under which they operate, if applicable, which are currently operated by the applicant or administrator and which provide housing, meals, and personal services to residents. Separate licenses are required for facilities maintained in separate premises, even though operated under the same management. A separate license will not be required for separate buildings on the same grounds.

They must also provide the location of the facility for which a license is sought and documentation, signed by the appropriate local government official, which states that the applicant has met local zoning requirements. The applicant must provide the name, address, date of birth, social security number, education, and experience of the administrator, if different from the applicant.

The applicant must also provide proof of liability insurance and that it has met the requirements of a community residential home. They must prove that the facility has received a satisfactory fire safety inspection and documentation of a satisfactory sanitation inspection of the facility. All licensed facilities must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction.

A provisional license may be issued to an applicant filing an initial application for licensure or filing an application for change of ownership (“CHOW”). A provisional license must be limited in duration to a specific period of time not to exceed 6 months. An occupational license may not be issued by a county or municipality if it is being obtained for the purpose of operating a facility without first concluding that the applicant has been licensed to operate the ALF at the specified location or locations by the agency.

In addition to the standard ALF license, a facility may also obtain three unique specialty licenses:

  1. Extended Congregate Care (“ECC”)

An ALF with an ECC license provides the basic services of an assisted living facility as well as: limited nursing services and assessments; total help with bathing, dressing grooming and toileting; measurement and recording of vital signs and weight; dietary management, including special diets, monitoring nutrition and food and fluid intake; supervision of residents with dementia and cognitive impairments; rehabilitative services; escort services to medical appointments; and educational programs to promote health and prevent illness.

 

  1. Limited Nursing Services (“LNS”)

A limited nursing services specialty license enables an ALF to provide, direct or through contract, a select number or nursing services in addition to the personal services that are authorized by the standard license. An ALF with an LNS license provides the basic services of an ALF as well as additional nursing services. Some of the limited nursing services are: nursing assessments; care and application of routine dressings; care of casts, braces, and splints; administration and regulation of portable oxygen; catheter, colostomy, and ileostomy care and maintenance; and application of cold or heat treatments, passive range of motion exercises, ear and eye irrigations.

 

  1. Limited Mental Health (“LMH”)

An ALF that serves 3 or more mentally ill or disabled residents must obtain an LMH specialty license. For the purposes of assisted living licensure, a mental health resident is defined as an individual who receives social security disability income (“SSDI”) due to a mental disorder or supplemental security income (“SSI”) due to a mental disorder, and receives optional state supplementation (“OSS”). An LMH license must be obtained if an ALF serves 3 or more mental health residents. The LMH license requires basic staff training in mental health issues and requires the ALF to: ensure that the resident has a community living support plan; provide assistance to the resident in carrying out the plan; and maintain a cooperative agreement for handling emergency resident matters. A facility can serve 1 or 2 mental health residents without an LMH license.

 

Duties to ALF Residents

  1. Contracts

The presence of each resident in an ALF must be covered by a contract, executed at the time of admission or prior to, between the ALF and the resident or his or her designee or legal representative. Each party to the contract must be provided with a duplicate original of the contract, and the ALF must keep the contracts on file for at least 5 years after the contract expires.

Each contract must contain express provisions specifically setting forth the services and accommodations to be provided by the facility; the rates or charges; provision for at least 30 days’ written notice of a rate increase; the rights, duties, and obligations of the residents; and other matters that the parties deem appropriate. The contract must include a refund policy to be implemented at the time of the resident’s transfer, discharge, or death. The purpose of any advance payment and a refund policy for such payment, including any advance payment for housing, meals, or personal services must be covered in the contract.

 

  1. Physical or Chemical Restraints

The use of physical restraints is limited to half-bed rails as prescribed and documented by the resident’s physician with the consent of the resident or, if applicable, the resident’s representative or designee or the resident’s surrogate, guardian, or attorney in fact. The use of chemical restraints is limited to prescribed dosages of medications authorized by the resident’s physician and must be consistent with the resident’s diagnosis. Residents who are receiving medications that can serve as chemical restraints must be evaluated by their physician at least annually to make an updated assessment.

 

ALF Duties & Responsibilities

ALF employees who are properly licensed to do so, may administer medications to residents, take residents’ vital signs, manage individual weekly pill organizers for residents who self-administer medication, give prepackaged enemas ordered by a physician, observe residents, document observations or the appropriate resident’s record, report observations to the resident’s physician, and contract or allow a resident or a resident’s representative, designee, surrogate, guardian, or attorney in fact to contract with a third party.

An ALF with 17 or more beds must have on the premises at all times a functioning automated external defibrillator with a local emergency medical services medical director. Facility staff may withhold or withdraw CPR or the use of an AED if presented with an order not to resuscitate.

The administrator or owner of an ALF must maintain personnel records for each staff member which contain, at a minimum: (1) documentation of background screening, if applicable; (2) documentation of compliance with all training requirements of this party or applicable rule; and (3) a copy of all licenses or certification held by each staff who performs services for which licensure or certification is required. The administrator or owner must also maintain liability insurance coverage that is in force at all times.

Every ALF must maintain records containing copies of all inspection reports pertaining to the facility that have been issued by AHCA to the ALF for a minimum of 5 years form the date the reports are filed or issued. Every ALF shall post a copy of the last inspection report of the agency for that facility in a prominent location within the facility so that it is accessible to all residents and to the public. A copy of this report must be provided to any resident of the facility upon request.

The administrator of a facility must ensure that a written notice of the rights, obligations, and prohibitions are posted in a prominent place in each facility and read or explained to residents who cannot read. Examples of some of the rights include: (a) a safe and decent living environment, free from abuse and neglect; (b)  to be treated with consideration and respect and with due recognition or personal dignity, individuality, and the need for privacy; (c) retain and use his or her own clothes and other personal property in his or her immediate living quarters; and (d) unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours or 9a.m. and 9 p.m. at a minimum.  The notice must include the statewide toll-free telephone number and email address of the State Long-Term Care Ombudsman Program and the telephone number of the local ombudsman council, the Elder Abuse Hotline operated by the Department of Children and Families, and, if applicable, Disability Rights Florida, where complaints may be lodged. The Adverse Incident Reporting rules and Resident Health Assessment forms must be part of each resident’s file.

Each ALF must prepare and update annually its comprehensive emergency management plan in accordance with the “Emergency Management Criteria for Assisted Living Facilities.” The plan must be submitted for review and approval to the local emergency management agency. There are eight different items that the emergency management plan must address, at a minimum, including: (1) provisions for all hazards; (2) identification of and coordination with the local emergency management agency; and (3) the identification of staff responsible for implementing each part of the plan.

 

Advertising

While an ALF facility is under construction, the owner may advertise to the public prior to obtaining a license. The ALF must include the facility’s license number as given by AHCA in all advertising. All advertising must include the term “Assisted Living Facility” before the license number.

 

Final Thoughts

As you have read, there are many requirements to opening and operating a Florida licensed Assisted Living Facility. This article does not attempt to highlight all of the legal requirements and should only be considered an educational overview. There are many legal considerations and requirements that were not addressed in this article. It is in your best interest to contact an experienced health care attorney if you are considering opening or purchasing an ALF so that they can help you navigate the process.

It’s important to remember that residents living in an ALF cannot have medical conditions that require 24-hour nursing supervision. The only exception is for an existing resident who is receiving licensed hospice services while residing in the ALF. If an ALF can no longer provide or arrange for service in accordance with the resident’s service plan and needs and the ALF’s policy, the ALF must make arrangements for relocating the person. The owner or administrator of a facility is responsible for determining the appropriateness of admission to the facility and for determining the appropriateness of a resident’s continuing stay in the facility.

Any person who reports a complaint concerning a suspected violation of resident rights or concerning services and conditions in facilities, or who testifies in any administrative or judicial proceeding arising from that complaint will receive immunity from any civil or criminal liability, unless that person has acted in bad faith or with malicious purpose or the court finds that there was a complete absence of a justifiable issue of either law or fact raised by the losing party.

Once you obtain your license but fail to timely file a renewal application and the license application fee with the Agency you will incur a $50 per day late fee; however, the aggregate amount of the late fee may not exceed 50 percent of the licensure fee or $500, whichever is less. The applicant must pay the late fee before a late application is considered complete and failure to pay the late fee is considered an omission from the application for licensure.

*************

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.