Medical Marijuana Law: Medical Use in Florida Part I

medical marijuana law FloridaBy: Susan St. John

As you have probably heard, Governor Scott signed Senate Bills 6A and 8A on June 23, 2017. What this means for practitioners is an increased opportunity to help patients that might derive benefit from treatment with medical marijuana. However, with increased opportunity comes increased scrutiny. Although these laws open up treatment options, practitioners need to ensure they strictly abide by the statutes and rules to be implemented by the Department of Health (“Department”). The Department has already published notice of the first conference call on Senate Bill 8A and emergency rule making authority, with the first conference call scheduled for Friday, July 14, 2017. Practitioners should also keep in mind that marijuana is still a schedule 1 controlled substance under federal law, thus, insurance companies are not covering treatment with medical marijuana.Continue reading

Florida Health Law: Physicians Required to Have Open Houses Now?

A new Florida health law passed by the Florida Legislature requires healthcare facilities and physician offices to allow patients to bring a person to their appointment. Florida law CS/HB 1253 changes the existing Patient Bill of Rights to give to each patient the right to bring to the “patient accessible areas” of a doctor’s office any person the patient chooses.  There is an exception for the new provision, which applies if bringing the person would “risk the health of the patient, other patients, or staff” of the office IF that can’t be reasonably accommodated.  Oh boy!  The provision is reminiscent of the access (and confusion) created by the ADA‘s applicability to physician offices for hearing and visually impaired patients.

Physicians will need to implement new policies to deal with the expansion of patients’ rights, since failing to comply can form the basis for a lawsuit.

Impaired Practitioner Program: Greater Treatment Access for Impaired Physicians

malpractice defense

impaired practitioner programBy: Jeff Cohen

A new law passed by the Florida Legislature shaves off some of the sharp edges of Florida law that applies to physicians who are impaired by substance abuse or mental illness.  The hub of treatment referenced in the law is the Impaired Practitioner Program (IPP).  Over the years, the IPP (a quasi-governmental entity) has come under fire for being too aggressive in how it deals with impaired physicians, by acting more like law enforcement than a healthcare provider.  Allegations in the past include physicians feeling “hauled off” to treatment before the demonstrated need was clear and being directed to providers that were expensive or inconvenient with reasonable alternatives exist.

The new law rounds out the IPP operations in creating additional accountability through the appointment by the Department of Health (DOH) of one or more consultants.  It also:

  1. allows certain providers to report an impaired practitioner to a consultant instead of the DOH.  Some in the program felt they were being leveraged into cooperating when they felt it was counter-indicated.  This measure might help balance the issues by interposing an independent consultant that is not under the IPP;
  2. prevents the consultant from reporting to DOH a practitioner who is self referring for treatment, but keeps intact features of accountability to help ensure the practitioner completes treatment;
  3. requires the consultant to copy the patient and any legal representative on any information release; and
  4. protects the consultant by extending sovereign immunity to him/her.

Healthcare professionals interacting with the IPP need to know their rights and options.  The new law helps facilitate that.

Addiction Treatment Law Changes Management Relationships

healthcare regulatory complianceBy: Jeff Cohen

Passage of the new and comprehensive Florida addiction treatment industry legislation (CS/CS/HB 807) will send addiction treatment facility management relationships back to the drawing board.  Prior to the new law, some DCF licensed facilities were managed by management companies, some of which were owned by people who either did not qualify to be on the DCF license or who did not want to be visible on the license.

The new addiction treatment law requires all such arrangements to be reconsidered.  Here’s why:  There are several sections in the new law where management is the subject of intensive focus.   Newly created 397.410 requires DCF to establish minimum licensure requirements for each service component limited in part to the number and qualifications of all personnel, including management.  Newly created 397.415(1)(d)1 authorizes DCF to deny, suspend or revoke licensure of any license based on a “false representation of a material fact in the licensure application or omission of any material fact from the application.”  Finally, 397.415 creates an entire category of potentially punishing fines and, in some cases, exposure to criminal prosecution.

The new law will create heavy regulatory suspicion for any non-transparent management relationship, even a third party relationship.  Worse, it’s conceivable that any suspicious or arguably noncompliant relationship could form the basis for recoupment by insurers.  When the state Health Care Clinic Law was created some years ago, payers took advantage of situations where facilities that required a license but didn’t have one.  Under a threat of insurance fraud (e.g. an unlicensed healthcare facility receiving compensation for services), some payers were able to extract huge recoupments.

Any DCF licensed facility with a third party management relationship needs to reconsider it in light of the new addiction treatment law.  Moreover, all interested parties should pay close attention to (and monitor and participate in) the new law’s rulemaking process which began at the end of June.

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