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Can a Non-Dentist Own a Dental Practice in Florida?

At Jones Health Law, we receive a lot of inquiries from non-dentists who are looking to own and operate dental practices. Dental offices that are placed in high-traffic areas with good management, a diverse patient population, talented healthcare professionals, and robust marketing and advertising efforts can generate significant revenue even with declining reimbursement rates from insurers. According to the American Dental Association, the average gross billings per dentist for owner dentists in 2017 was $718,790 for a general practitioner and $1,058,630 for a specialist. With numbers like that you can see why a non-dentist might want to open a practice comprised of several dentists and dental hygienists. However, non-dentists must be very cautious about structuring their relationships with the dentists.

Under Florida law, no person other than a Florida licensed dentist, nor any entity other than a professional corporation or limited liability company composed of dentists may:

  1. Employ a dentist or dental hygienist in the operation of a dental office.
  2. Control the use of any dental equipment or material while such equipment or material is being used for the provision of dental services, whether those services are provided by a dentist, a dental hygienist, or a dental assistant.
  3. Direct, control, or interfere with a dentist’s clinical judgment.

As per statute, a non-dentist must not directly employ a dentist (i.e. W-2 employee) but they may work with the dentist as a 1099 independent contractor. The non-dentist cannot pay a dentist a salary or commission. The dentist may create their own wholly owned professional corporation while the non-dentist may provide their services through an LLC or other taxable organization. No employment contract may exist between the dentist and the operator but an independent contractor agreement may be necessary. Any dentist who is employed by a non-dentist may face disciplinary action.

The non-dentist who is providing the office space and equipment cannot control the use of dental equipment while such equipment or material is being used for the provision of dental services (emphasis added). This means that while the dentist is operating dental equipment the non-dentist cannot barge in and place restrictions on how the equipment or material is being used once a patient is being treated. For example, if a dentist is treating a patient and that treatment was expected to last 30 minutes but is now at the 45-minute mark the non-dentist cannot physically manipulate any dental equipment or tell the dentist that she has to finish within the next 5 minutes because another dentist needs to use it. However, a lease agreement can place general restrictions on the operation and use of the equipment that is being leased to the dentist.

Most importantly, a non-dentist cannot interfere with a dentist’s clinical judgment by instructing them on a course of treatment to provide to a patient. All clinical decisions must be left to the discretion of the dentist. The purpose of this law is to prevent non-dentists from influencing or interfering with the exercise of a dentist’s independent professional judgment.

The relationship between the non-dentist and dentist will be a network of lease, rental, marketing, practice management and administrative agreements. Any dental equipment lease agreement between a non-dentist and dentist must contain a provision stating that the dentist expressly maintains complete care, custody, and control of the equipment or practice. Further, an agreement is void if the non-dentist exercises control over the following:

  1. The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;
  2. The patient records of a dentist;
  3. Policies and decisions relating to pricing, credit, refunds, warranties, and advertising; and
  4. Decisions relating to office personnel and hours of practice.

A non-dentist may enter into a management contract with the dentist’s professional corporation to provide administrative services, which may include maintenance of patients’ medical records but the control and ownership of those records do not belong to the management company. The dentist must have unfettered access to those medical records as needed.

While a non-dentist cannot dictate the dentist’s hours of practice the medical office space lease agreement may include office access hours. For example, a lease agreement may grant the dentist access to the medical office space between the hours of 8 a.m. to 8 p.m. but the dentist would set their hours of practice between 9 a.m. to 3 p.m. Further, only the dentist has control over the hiring and termination of office licensed personnel such as dental associates, hygienists, technicians, and assistants.

A dentist may enter into an agreement with a non-dentist to receive “Practice Management Services.” The term “Practice management Services” is defined to include consultation or other activities or services offered by someone other than a Florida licensed dentist regarding one or more of the following types of products or services:

  1. The suitability of dental office space, furnishings and equipment;
  2. Staff necessary to operate a dental practice;
  3. Regulatory compliance expertise and services;
  4. Methods to increase productivity of a dental practice;
  5. Inventory and supplies required to operate a dental practice;
  6. Information systems designed to produce financial and operational data on the dental practice;
  7. Marketing plans or advertising to increase productivity of a dental practice;
  8. Site selection, relocation, design or physical layout of a dental practice, or
  9. Financial services such as accounting, bookkeeping, monitoring and payment of accounts receivable, payment of leases and subleases, payroll or benefits administration, billing and collection for patient services, payment of federal or state income tax, personal property or intangible taxes, administration of interest expense or indebtedness incurred to finance the operation of the dental practice, or malpractice insurance expenses.

Non-dentist management fee must be for fair market value and directly related to the goods and services provided without taking into account patient referrals. The dentists should not pay a percentage or portion of ifs gross or net profits to the non-dentist corporation.

Finally, dentists are prohibited from entering into non-compete agreements for the provision of dental services with any entity which is not itself a licensed dentist, or which is not licensed or otherwise permitted by law to provide the services which are the subject of the agreement not to compete.

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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 of the 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.

AHCA Application for Exemption from Disqualification

If you are reading this article it means that you have probably received a letter from the Agency for Healthcare Administration (“AHCA”) stating that they have uncovered criminal offenses that disqualify you from working for a health care provider. AHCA may have uncovered this offense a result of background screening submitted as part of the employment process for a health care provider and/or participation as a Medicaid provider. This applies to clinical staff as well as facility owners, administrators and chief financial officers and those seeking enrollment as a provider in the Florida Medicaid program. Fear not, because you may be eligible to file an Exemption from Disqualification if you meet certain criteria.

Am I Eligible for Exemption?

Our firm can assist you with demonstrating to AHCA by clear and convincing evidence that an exemption from disqualification should be granted. The application will only be reviewed once all relevant supporting documents are received by AHCA. You are only eligible for Exemption from Disqualification if:

  1. You have been lawfully released from confinement, supervision or other nonmonetary condition imposed by the court for a disqualifying misdemeanor criminal offense;
  2. At least 3 years after you have been lawfully released from confinement, supervision, or other nonmonetary condition imposed by the court for a disqualifying felony criminal offense;
  3. You have completed any court-ordered fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor in full; and
  4. If you have been designated as a sexual predator, sexual offender or career offender you are not eligible for an exemption from Disqualification.

 

Filing the Application

Filling out the application can be a bit tricky, so you should definitely hire a health law attorney that has experience with doing so in order to prevent delays in processing your application. In addition to completing the Application for Exemption from Disqualification you will need to provide AHCA with the following:

  1. Current Level II Screening;
  2. Arrest Reports;
  3. Court Dispositions;
  4. Signed Statement (only if you cannot obtain the arrest report and/or court disposition);
  5. Probation and/or Parole records;
  6. Letters of Reference; and
  7. Documentation of Rehabilitation

It is important to note that when you apply for exemption you must provide all arrest reports, including those that were not specifically listed in the notice that you received from AHCA. You will also need to provide all court dispositions no matter the plea, judgment, verdict or even if it was sealed or expunged from your record. All of these documents will need to be neatly organized and AHCA must receive the documents within 30 days from receipt of its letter. It may take a little bit of legwork to retrieve these documents, so it is important to contact our firm as soon as possible so that we don’t miss the deadline. AHCA rarely grants extensions for filing the application.

Finally, if you are a certified or licensed healthcare professional you may also have to file an application for exemption with the Florida Department of Health (“DOH”). Florida Statute 408.809(7)(a) states that AHCA may grant an exemption from disqualification to a person who is subject to this section and who: (1) Does not have an active professional license or certification from the DOH; or (2) has an active professional license or certification from the DOH but is not providing a service within the scope of that license or certification.You may also have to submit a signed background screening privacy policy acknowledging receipt of the privacy policy. Once the DOH receives your application they will review it and make a decision as long as that person is working in the scope of their license or certification.

What Happens After Filing?

Once AHCA received the documents, it will be transferred to the Exemption Team and assigned to one of their analysts. As stated earlier, the analyst is looking for clear and convincing evidence that the employee should not be disqualified from employment. The Agency will consider the following:

  • The circumstances surrounding the criminal incident(s) for which an exemption is sought;
  • The time period that has elapsed since the incident(s);
  • The nature of the harm caused to the victim;
  • The history of the employee since the incident(s);
  • Any other evidence or circumstances indicating that the employee will not present a danger if employed or continued employment is allowed; and
  • Whether the applicant has been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.

Once you’ve submitted your application it takes approximately 30 days for AHCA to render its decision to you. Exemptions granted by one agency will be considered by other agencies, but it is not binding on subsequent agencies. It is possible for AHCA and DOH to deny your application even though you feel you meet the criteria for an exemption. In those instances, our firm will represent you before AHCA and DOH Boards if you chose to contest the Agency decision. You have 21 days from the date you sign for the certified letter to request an appeal. The administrative law judge will only decide whether the agency’s intended action is an abuse of discretion.

Job Status

Are you allowed to continue to work for your employer after you’ve submitted the application for Exemption from Disqualification? It depends on the circumstances. If you were screened and hired by your current employer on or before June 30, 2014 and this disqualification was due to a rescreening by the same employer, you may continue work if you meet all of the following criteria:

  1. You are eligible to apply for exemption;
  2. Your disqualifying offense was not disqualifying at the time of your last screening, but is now disqualifying and was committed before the date of your last screening;
  3. Your employer agrees that you may continue working; and
  4. You submit your application timely.

According to Florida Statute, 408.809(4) an employee may continue to perform her duties and her employer may continue to allow her to have contact with any vulnerable person (i.e. physical therapy patients) that would place employee in a role that requires background screening while her application for exemption from disqualification by the agency is being processed and under review. You also must make sure that your license stays active if you are a licensed healthcare provider, which means that you should submit any renewal forms and correct any omissions to prevent your license from expiring.

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

What to do if I Received an AHCA Administrative Complaint or Notice of Intent?

Why did I receive this Administrative Complaint or Notice of Intent?

If you have received an Administrative Complaint from the Agency for Health Care Administration (“AHCA”) it means that they are alleging that your healthcare facility (i.e. Nursing Home, Assisted Living Facilities, Skilled Nursing Facilities, or Home Health Agency) has violated one or more sections of the Florida Statutes, the Florida Administrative Code, or both. AHCA will then make the argument that because you have violated these laws that your facility’s license should be revoked or suspended and you may be required to pay an administrative fine. Typically, you have 21 days to respond to the complaint by disputing the allegations or admitting the allegations. Depending on your response and how your case is handled could have a serious long-term impact on you and your practice, which could possibly lead to criminal charges.

AHCA may conduct unannounced inspections on any of the facilities listed above. After AHCA has conducted its survey, the administrator for the facility will be provided with a survey report detailing AHCA’s findings including any deficiencies. These deficiencies will be provided to you in the Statement of Deficiencies.  Deficiencies must be fixed within thirty days after notification and another ten days to present a Plan of Correction with the corrective measures that must be taken to comply with your license’s requirements. Many times, these unannounced inspections occur if an individual has decided to file a complaint against your facility. AHCA then seeks to substantiate those claims that were made by that individual.

How Might this Impact my Healthcare Facility or License?

AHCA maintains a list of all actions that were filed against your facility and if they were resolved via settlement agreements, defaults and dismissals, or by recommended orders. These three outcomes can have different impacts on your license and ability to practice. They are all part of the public record and they may impact the type of penalty that your receive for future infractions.

What to expect at the Division of Administrative Hearings?

The Administrative Hearing before a Florida Administrative Law Judge is governed by the Florida Administrative Code, Florida Rules of Evidence, and the Florida Administrative Procedure Act, F.S. Chapter 120. If you decide to deny the allegations and pursue an Administrative Hearing before the Division of Administrative Hearing (“DOAH”) the case can still be closed or settled prior to entry of a Final Order by the judge if the parties can agree to negotiated terms.  Hearings can either be informal or formal.

At the hearing, if brought by AHCA, the burden is on AHCA to prove “clear and convincing evidence” that the healthcare facility failed to act in a certain way or acted in a way that was otherwise prohibited. If AHCA can’t prove this then that specific Count, Notice of Intent, or the entire Administrative Complaint may be dismissed.

Examples of Violations

Here are some examples of violations that healthcare facilities may get dinged for by AHCA:

  1. Director of Nursing (“DON”) – AHCA requires that a home health agency that provides skilled nursing case must have a director of nursing at all times. If a DON ceases working at that facility the HHA must inform AHCA within 10 days or risk a Class II deficiency.
  2. Advertisements – A person that offers or advertises to the public a service for which registration is required (i.e. nursing home or home health services) must include in its advertisement the registration number issued by AHCA.
  3. Office Hours – Home Health Agency administrator or DON, or their alternates, must be available to the public for any eight consecutive hours between 7:00 a.m. and 6:00 p.m., Monday through Friday of each week. Available to the public means being readily available on the premises or by telecommunications. If an AHCA surveyor arrives on the premises to conduct an unannounced survey and no authorized person is there to provide access to patient records within one hour of the arrival of the surveyor then they have violated licensure requirements. Further, that list of current patients must be provided to the surveyor within two hours of arrival if requested. Failure to do either may be grounds for denial or revocation of the agency license.

Nursing Homes and related Health Care Facilities, such as Home Health Agencies have many statutory requirements and AHCA doesn’t care whether your intended to violate the requirements or not. They will pursue action against you. For example, there are certain Director of Nursing and Administrator requirements (i.e. staffing requirements, notifications to AHCA, limitations on staffing services, etc.) that Nursing Homes and Home Health Agencies must adhere to or risk fines and suspension of their license.

What are the Penalties?

Four different class violations exist, and the fines vary depending on the seriousness of the violation. For example, a Class II violation permits AHCA to impose an administrative fine in the amount of $5,000 for each occurrence and each day that the violation exists, while Class III only imposes a fine not to exceed $1,000. Additionally, AHCA may impose costs related to an investigation that results in successful prosecution, excluding costs associated with an attorney’s time. In other words, if you decide to fight the allegations and you are unsuccessful you may have to pay thousands of dollars in fines and fees related to your investigation. In addition to a fine for a certain class violations AHCA may request revocation of your license.

Florida Statute §400.474 lists various actions taken by a home health agency that are grounds for disciplinary action and the administrative penalties that may be imposed by AHCA. AHCA considers the (1)nature/severity of the violation; (2) actions taken by the administrator to correct violations; (3) prior violations; (4) the effect your violations had on facility residents; (5) financial benefits to the violating facility; and (6) whether this was an isolated, patterned, or widespread deficiency.

Conclusion

It is important to hire a competent health law attorney at the early stages of the investigation who is familiar with these types of cases to handle subsequent hearings. Although it’s not a guarantee, a highly-skilled attorney might be able to mitigate the seriousness of the offenses in the complaint resulting in the reduction or rescinding of fines and action against your license. You and your attorney should decide whether it is best for you to appear before an administrative law judge or negotiate a settlement with AHCA. To better weigh your options a licensed attorney may submit a motion for extension of time to respond to the Administrative Complaint so that you can negotiate a settlement or gather evidence do deny the allegations at the hearing. Alternatively, if you have already submitted your Election of Rights to AHCA, a health law attorney may be able to submit a Motion for Abeyance to continue the case while you explore available options with AHCA.

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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 of the 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 Registered Nurse Administer Botox?

**UPDATE: AS OF 09/13/2023**

A Declaratory Statement has been issued by the Florida Board of Nursing allowing for a nurse with the appropriate level of education, training, and experience to administer Botox under the supervision of a physician. A declaratory statement is not the appropriate means for determining the conduct of another person or for obtaining a policy statement of general applicability. The issuance of this Declaratory Statement does not mean that all registered nurses can administer Botox, rather that determination must be made on a case-by-case basis. See article here.

Those who run med spas, dental or dermatology practices are concerned about whether a registered nurse on staff can administer Botox without their direct supervision. Allowing them to do so would free up the physician’s schedule so that he can perform other procedures that his personnel is not permitted to do.

According to the Florida Board of Medicine, there are no laws and rules that address who can and cannot administer Botox injections in the state of Florida.

However, a 2017 Board of Nursing case[1] involved a Florida licensed Registered Nurse who was alleged to have violated Florida Statutes 456 and/or 464. In March 2016, the nurse administered Botox to multiple patients on multiple occasions. The Board of Nursing found that the nurse did not perform the Botox injections pursuant to a valid physician’s order. The Board of Nursing held that performing Botox injections without a physician’s order is beyond the scope permitted by law. Further, the nurse had reason to know that she was not competent to perform the Botox injections.

The Board referenced Florida Statute 464.018(1)(h) in its decision by stating that unprofessional conduct as defined by the board is grounds for disciplinary action. The Board also referred to Florida Administrative Code Rule 64B9-8.005(13), which provides that unprofessional conduct includes practicing beyond the scope of the licensee’s license, educational preparation or nursing experience. (emphasis added). Finally, the Board stated that the nurse engaged in unprofessional conduct by practicing beyond the scope of her license, educational preparation and/or nursing experience by performing Botox injections without a valid physician’s order.

In Florida, practicing medicine without a license is considered a 2nd degree misdemeanor. Additionally, the nurse could have had the following actions taken against her:

  1. license suspended or permanently revoked;
  2. restriction of practice;
  3. imposition of an administrative fine;
  4. issuance of reprimand;
  5. probation;
  6. refund of fees billed or collected;
  7. remedial education; and/or
  8. any other relief that he Board deemed appropriate.

Two things should be taken away from the decision in this case. First, just because there isn’t a specific law on the books regarding Botox injections doesn’t make it legal for a registered nurse to administer it to patients. Second, I thought that it was interesting that the Board stated that the nurse was not performing the Botox injections pursuant to a physician’s order. Many would view this sentence as specifically allowing a nurse to administer Botox injections only in situations where the nurse is doing so pursuant to a physician’s orders (not an NP, PA, ARNP). I don’t believe that to be true because the Board went on to state that even pursuant to a physician’s orders a registered nurse does not possess the requisite educational preparation to perform the procedure and that doing so would be practicing beyond the scope of her nursing license.

[1] Department of Health v. Trisha Lorraine White, R.N. Case Number 2016-13884

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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 of the information and references made to laws, 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.

Failed Pre-Employment Drug Test for Nursing Position

Whether you are still in nursing school, just graduated from nursing school or seeking new employment as a nurse you will likely need take a drug test as part of the pre-employment process. Also, it is not uncommon for nurses and other healthcare providers to submit to random drug testing even after they are employed. Some nurses are taking illicit drugs and it should come as no surprise if they fail their drug test. However, there are individuals who are shocked to find out that they have failed a drug test because they are not knowingly taking any illicit drugs. Some nurses may have false positives on drug tests for various reasons not related to drug abuse. One common way that nurses fail drug tests is when they take prescription drugs that may contain prohibited drugs as part of the formula. For example, some drugs may contain a very small percentage of methamphetamine. Nurses who take prescription drugs without a prescription or any legitimate medical reason for using the drug can also subject your license to discipline.

If you have a legitimate problem with drugs or alcohol the Board of Nursing might require you to attend rehabilitation center or treatment facility. If you fail your drug test many hospitals require the nurse to self-report to the Intervention Project for Nurses (“IPN”). If you choose not to self-report they will likely report you. You should speak with a health law attorney to determine whether self-reporting to the IPN is the right decision for you. You should review your hospital’s policies and procedures manual to determine how the hospital handles these types of matters internally. The manual should also inform you of whether IPN reporting is mandatory or voluntary.

The IPN was created by the Florida Legislature and is the only case management program recognized by the Board of Nursing. The IPN is comprised of case managers, administrative staff and psychiatrists, psychologists, and addictionologists whose main goal is to determine whether the nurse can safely perform her duties. However, in some instances nurses may pursue private treatment options rather than the IPN. There are several factors that our firm will use to determine whether IPN Florida is the best option available for you to avoid significant licensing restrictions or revocation.

Nurses who submit to the IPN must sign a five year contract agreeing to monitoring, counseling meetings, regular psychiatric visits, random urinalysis testing, mandatory notification to all employers that you are in IPN and the reasons why and prohibitions on drinking alcohol or taking any medication without prior approval by IPN. Typically, it is impossible to depart the IPN program after you’ve agreed to be a part of it without losing your nursing license. In addition to losing your license you will be reported to the National Practitioner Data Bank (NPDB) and face exclusion from Medicare and Medicaid programs.

Many nurses fail the IPN plan because they can’t afford to keep up with its requirements. Nurses are responsible for the costs of drug tests, collection fees, therapy sessions, and visits with addiction professionals. Failure to meet the requirements of the IPN program will result in your name being reported to the Department of Health and formal action will be taken against your license.

If you have failed your drug test you will receive correspondence from the Department of Health requiring you to relinquish your nursing license for a specified period of time. After that time period has expired, you may re-apply for your license and if granted you will be placed on a probationary status. While on probation you may be required to do periodic call-ins for random drug testing. Unfortunately, even after you’ve completed monitoring agreement with the IPN you could still have action taken against your nursing license.

If your attorney is unable to resolve the issue internally a complaint will be filed against you. If a complaint is filed against you will have to present yourself to a hearing at which time there will be a discussion of the evidence by a hearing officer or Probable Cause Panel. These hearings are governed by Florida’ Nurse Practice Act. If you can prove that the allegations against you are not true then the panel or hearing officer will rule in your favor. If you are unsuccessful at the hearing you can appeal the decision through the judicial system.

Before appearing before a Probable Cause Panel, you should obtain several character references, prior negative drug tests, polygraph testing, letter of explanation, letter of apology, and you should complete your own evaluation by a board-certified psychiatrist or addiction specialist. These materials will lessen the severity of the punishment handed down by the panel.

The Board of Nursing may issue a fine, reprimand of your nurse’s license, require evaluation by an IPN approved psychologist or addictionologist, or revocation of your license if the case is severe. Fines for first time offenses range from $250 to $500 and it can also include a suspension of your license and an IPN evaluation. Fines for second offenses include a $500 fine, possible suspension, and IPN evaluation, or a revocation of your license.

DOH investigators typically complete these types of investigations and report their findings within 45 days. If they determine that you were abusing drugs or alcohol the Surgeon General will issue an Emergency Suspension Order (“ESO”). The ESO will suspend your license pending the completion of the proceedings. During this time, the nurse will be unable to practice in Florida and most likely in any other jurisdiction where he holds a license.

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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 information listed above.

All of the information and references made to laws, 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 I become a Federally Qualified Health Center?

Federally Qualified Health Centers (“FQHC”) are community-based healthcare providers that receive money for providing primary care services to under-served populations or areas. FQHCs were enacted under Section 1861(aa) of the Social Security Act and was amended by Section 4161 of the Omnibus Budget Reconciliation Act of 1990.

FQHCs are required to adhere to certain criteria, including, but not limited to, providing comprehensive healthcare services (either on-site or by arrangement with another provider) on a sliding fee scale based on ability to pay and operating under a governing board that includes patients. These comprehensive services may include: (1) preventive health services; (2) dental services; (3) mental health and substance abuse services; (4) Transportation services necessary for adequate patient care; and (5) hospital and specialty care. FQHCs must also implement an ongoing quality assurance program.

 

FQHC Certification

To be certified as an FQHC, a healthcare provider must meet one of the following requirements:

  • Receive a grant under Section 330 of the Public Health Service Act (“PHS Act”) or receive funding from such a grant and meets other requirements.
  • Is not receiving a grant under Section 330 of the PHS Act but is determined by the Secretary of the Department of Health & Human Services to meet the requirements for receiving such a grant based on the recommendation of the Health Resources and Services Administration (“HRSA”).
  • Was treated by the Secretary of HHS for purposes of Medicare Part B as a comprehensive Federally-funded health center as of January 1, 1990.
  • Is operating as an outpatient health program or facility of a tribe or tribal organization under the Indian Self-Determination Act or as an urban Indian organization receiving funds under Title V of the Indian Health Care Improvement Act as of October 1991.

 

For certification as an FQHC, the entity must meet all of these requirements:

  • Provide comprehensive services and have an ongoing quality assurance program
  • Meet other health and safety requirements
  • Not be concurrently approved as a Rural Health Clinic.

 

FQHC Eligibility

Once eligible, FQHCs will qualify for funding under Section 330 of the Public Health Service Act, as well as, enhanced reimbursement form Medicare and Medicaid. FQHCs are paid based on the FQHC Prospective Payment System (“PPS”) for medically-necessary primary health services and qualified preventive health services furnished by a FQHC practitioner.

 

Examples of FQHC

A FQHC visit is medically-necessary face-to-face medical or mental health visit or a qualified preventive health visit between the patient and a physician, NP, PA, CNM, CP, or CSW during which time one or more qualified FQHC services are furnished.  FQHCs include:

  • Community health centers
  • Migrant health centers
  • Healthcare for the homeless health centers
  • Health centers for residents of public housing
  • Health center program “look-alikes”

 

Telehealth Services

FQHCs are authorized to serve as an originating site for telehealth services if the FQHC is located in a qualifying area. An originating site is the location of an eligible Medicare patient at the time the service being furnished via a telecommunications system occurs. FQHCs that serve as an originating site for telehealth services are paid an originating site facility fee.

FQHCs are not authorized to serve as a distant site for telehealth consultations. A distant site is the location of the practitioner at the time the telehealth service is furnished. The cost of a visit may not be billed or included on the cost report.

 

FQHC Reimbursements

FQHCs set their own charges for the services they provide and determine which services to include in the bundle of services associated with each FQHC code. Charges must be uniform for all patients.

Payment is for professional services only. Laboratory tests and the technical component of billable visits are paid separately. Procedures are included int eh payment of an otherwise qualified visit and are not separately billable. If a procedure is associated with a qualified visit, include the charges for the procedure on the claim with the visit.

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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 information listed above.

All of the information and references made to laws, 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.

Reinstatement After A Healthcare Entity or Individual is Placed on the OIG and Florida’s Exclusion List

What is the Exclusion List?

The Office of Inspector General’s (“OIG”) list of Excluded Individuals and Entities (“LEIE”) provides information to the healthcare industry, patients and the public regarding individuals and entities currently excluded from participation on in Medicare, Medicaid and all other Federal healthcare programs.

OIG imposes exclusions under the authority of sections 1128 and 1156 of the Social Security Act. On May 8, 2013, the OIG released a Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs, which states that no federal healthcare program payment may be made for items or services furnished by (1) an excluded person or (2) at the medical direction or on the prescription of an excluded person.

 

What is the Administrative Process for LEIE?

When an individual or entity gets a “Notice of Intent to Exclude” (“NOI”), it does not necessarily mean that they will be excluded. OIG will carefully consider all material provided by the person who received the NOI before making a decision. All exclusions implemented by OIG may be appealed to an HHS Administrative Law Judge (“ALJ”), and any adverse decision may be appealed to the HHS Department Appeals Board (“DAB”). Judicial review in Federal court is only available after a final decision by the DAB.

If the OIG decided to proceed with exclusion, they will send the individual or entity a Notice of Exclusion along with information about the effect of the exclusion and appeal rights. Exclusions are effective 20 days are the Notice of Exclusion is mailed, and notice to the public is provided on OIG’s website.

When a permissive exclusion (discussed below) is being considered, the NOI allows the individual or entity to request an opportunity to present oral argument to an OIG official before a decision about whether to exclude is reached. This is in addition to the right to submit documentary evidence and written argument. The process and requirements vary depending on which section of the Social Security Act is violated.

 

How do I determine if I’ve been placed on the list?

The following are two options available to determine whether you are on the LEIE:

  1. The Online Searchable Database enables users to enter the name of an individual or entity and determine whether they are currently excluded. If a match is made on an individual, the database can verify with an individual’s Social Security Number that the match is unique. Employer Identification Numbers are available for verification of excluded entities.

 

  1. The Downloadable Database enables users to download the entire LEIE to a personal computer. Supplemental exclusion and reinstatement files are posted monthly to the OIG’s website, and these files can be merged with the previously downloaded data file to update the list.

The OIG recommends that you check the exclusion list on a monthly basis. Monthly checks should be documented so that an organization can demonstrate that they have acted in good faith to screen against excluded individuals or entities. Both databases are updated by the middle of each month. You can search here: https://exclusions.oig.hhs.gov/

Providers must also review Florida’s exclusion database while it is performing background searches.

 

Are there different types of exclusion?

There are two types of exclusions under the Social Security Act:

  1. Mandatory Exclusion – The OIG is required by law to exclude from participation in all federal healthcare programs individuals and entities convicted of the following criminal offenses: Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare, Medicaid, SCHIP, or other state healthcare programs; patient abuse or neglect; felony convictions for other healthcare related fraud, theft, or other financial misconduct; and felony convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances.

 

  1. Permissive Exclusion – The OIG has discretion to exclude individuals and entities on a number of grounds including, but not limited to, misdemeanor convictions related to healthcare fraud other than Medicare or a state health program; fraud in a program (other than a healthcare program) funded by any federal, state, or local government agency; misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances, suspension, revocation, or surrender of a license to provide healthcare for reasons bearing on professional competence, professional performance, or other financial integrity; provision of unnecessary or substandard services; submission of false or fraudulent claims to a federal healthcare program; engaging in unlawful kickback arrangements; defaulting on a health education loan or scholarship obligation; and controlling a sanctioned entity as an owner, officer, or managing employee.

For all proposed mandatory exclusions lasting longer than the mandatory minimum five-year period, and most proposed permissive exclusions the administrative process is the same. OIG will send out a written NOI to any individual that they are considering excluding. The NOI included the basis for the proposed exclusion and a statement about the potential effect of an exclusion.

If you’ve already hired someone or contracted with a vendor prior to discovering that they are on the LEIE you may be required to Self-Disclose the hiring.

 

Reinstatement from the LEIE

Reinstatement of an excluded individual or entity is not automatic once the specified period of exclusion ends. In order to participate in Medicare, Medicaid, and all Federal healthcare programs once the term of exclusion ends, the individual or entity must apply for reinstatement and receive written notice from OIG that reinstatement has been granted.

An individual or entity with a defined period of exclusion (e.g., 5 years) may begin the process of reinstatement 90 days before the end of the period specified in the exclusion notice letter.

An individual or entity excluded under section 1128(b)(4) of the Social Security Act, whose period of exclusion is indefinite, may apply for reinstatement when they have regained the license referenced in the exclusion notice. In addition, under some conditions an individual or entity excluded under section 1128(b)(4) or the Act may apply for reinstatement if they have (1) obtained a different healthcare license in the same state; (2) any healthcare license in a different state; or (3) have been excluded for a minimum period of 3 years.

To apply for reinstatement, an excluded individual or entity must send a written request to the OIG. If the individual is eligible to apply for reinstatement, the OIG will then mail Statement and Authorization forms that must be completed. Once the information have been evaluated, a written notification of OIG’s final decision on reinstatement will be provided via mail. If reinstatement is denied, the excluded individual or entity is eligible to reapply after one year.

Individuals and entities who have been reinstated are removed from the LEIE.

Penalties for Excluded Individuals or Entities

OIG may impose civil monetary penalties of up to $10,000 for each item or service furnished by the excluded person for which federal program payment is sought. They may also be forced to pay treble damages and program exclusion.

An excluded person may be civilly liable under the False Claims Act for knowingly presenting or causing to be presented a false or fraudulent claim for payment. Violations could also lead to criminal prosecutions if an excluded person knowingly conceals or fails to disclose any action affecting the ability to receive any benefit or payment with the intent to fraudulently receive such benefit or payment. Additional criminal statutes may also apply to such violations.

The information above only scratches the surface of dealing with LEIE issues. Depending on the facts of your case the circumstances, procedures, and potential outcome can vary greatly. If you have received an NOI, discovered that one of your contractors or employees is on the LEIE, or you have been excluded from receiving Federal program dollars and desire to be reinstated you should contact us immediately. We have experienced Health Law attorneys on staff who can help you navigate the entire process.

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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 information listed above.

All of the information and references made to laws, 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 Truth About the Corporate Practice of Medicine, Optometry, and Dentistry in Florida

Many states place restrictions on how medical doctors, optometrists, and dentists may organize themselves and conduct business within the state. Some states place significant restrictions on these healthcare providers while others are more lenient. Several states have enacted laws that prohibit certain healthcare providers from being employed by or controlled by any corporation or business, which is not entirely owned by other physicians. This is referred to as the prohibition of the “corporate practice of medicine.” Florida is unique in many ways, including its approach to regulating how these healthcare providers can organize themselves. Florida does not place the same corporate prohibitions on medical doctors as it does with dentists and optometrists.

Under Florida law, licensed healthcare professionals may organize themselves as professional service corporations (“P.A.”) or as professional limited liability companies (“PLC”). However, if a provider organizes her business as a P.A. or PLC she is only allowed to have other members who are in the same profession in her association. They may act as shareholders, officers, or directors of the corporation. For example, a P.A. may only be comprised of M.D.’s and is prohibited from allowing other healthcare providers such as, D.O.’s, dentists or optometrists from becoming shareholders of that P.A.

In Florida, Healthcare providers may also choose to organize themselves as a regular business corporation, with the “Inc.” designation, or as a Florida limited liability company.

Florida professional corporations are governed by the laws contained in Florida Statutes §§ 607, 620 and 621. Additionally, certain healthcare providers are regulated by one or more of the following statutes, Florida Statutes §§ 456 – 468, depending on the type of healthcare services that they provide and the licenses that they hold. Healthcare providers must ensure that they strictly comply with all applicable Florida Statutes and the Florida Administrative Code. Therefore, it is extremely important to hire a knowledgeable attorney that specializes in health law to ensure that your practice is complying with the applicable laws.

 

Corporate Practice of Medicine

As of April 2018, Florida does not have any laws that expressly prohibits the corporate practice of medicine. In other words, a physician (M.D. or D.O) may be employed by or contracted by non-physician owned corporations for the provision of healthcare services.

Throughout the years, several Declaratory Statements have been issued the Florida Department of Health indicating that there is no prohibition on the practice of medicine by physicians as corporate employees. In re Crow, Crow was a Florida licensed physician who sold his practice to a corporation and was then hired as an employee by that corporation and was provided a flat-fee salary for the provision of his services. Dr. Crow informed each patient of his relationship with the corporation but maintained exclusive control over the medical diagnosis and treatment of patients, and the corporation had no authority to exercise control over Dr. Crow’s professional judgment or the manner in which he rendered medical care to patients. The Board found that this arrangement was permissible so long as the fees generated for the corporation by professional services were actually provided by Dr. Crow and those under his direct supervision.

 

Corporate Practice of Optometry

Unlike the corporate practice of medicine, Florida expressly prohibits the corporate practice of optometry. Florida Statute §463.014 states that no corporation, lay person, organization or individual other than a licensed practitioner can engage in the practice of optometry by engaging the services, through paying a salary, commission, or other means of inducement to any Florida licensed optometrist.

The law does allow for a licensed practitioner, such as an optometrist, to associate with a multidisciplinary group of licensed healthcare professionals, the primary purpose of which is the diagnosis and treatment of the human body. Optometrists may also employ, or form partnerships or professional associations with Florida licensed practitioners or healthcare professionals, the primary purpose of which is the diagnosis and treatment of the human body.

 

Corporate Practice of Dentistry

The corporate practice of dentistry is prohibited under Florida law. Florida Statute §466.0285 states that no person other than a Florida licensed dentist or any entity other than a professional corporation or limited liability company composed of dentists may:

  1. Employ a dentist or dental hygienist in the operation of a dental office.

 

  1. Control the use of any dental equipment or material while such equipment or material is being used for the provision of dental services, whether those services are provided by a dentist, a dental hygienist, or dental assistant.

 

  1. Direct, control, or interfere with a dentist’s clinical judgment.

 

  1. Have a relationship with a dentist which would allow the non-dentist or entity to exercise control over:

 

  • The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;
  • The patient records of a dentist;
  • Policies and decisions relating to pricing, credit, refunds, warranties, and advertising; and
  • Decisions relating to office personnel and hours of practice.

 

Any lease agreement, rental agreement, or other arrangement between a non-dentist and a dentist whereby the non-dentist provides the dentist with dental equipment or dental materials must provide that the dentist maintains complete care, custody, and control of the equipment or practice.

 

Conclusion

Dentists must examine the administrative rules implemented by the Florida Board of Dentistry because these rules provide guidance in addition to the statutory law. The Florida Board of Optometry also has its own set of rules that could impact an optometrist’s relationship with others and how it conducts its business.

Whether you are considering creating a corporation for your healthcare practice to take advantage of tax benefits or to limit your exposure to certain types of liability you must determine whether the proposed structure for your corporation is compliant with applicable healthcare laws. For example, Florida law prohibits “fee-splitting” by healthcare professionals. Failure to do so could result in fines, penalties, closure of your office, or imprisonment.