Day: June 22, 2022

If you can’t make heads or tails out of Florida law on this topic, join the club!  The law is clear as…mud.  Simply put, ANY physician can provide the required indirect supervision of a mid-level practitioner at a MedSpa IF the physician’s primary practice location is the same one as the MedSpa.  If the physician’s primary practice location is different from the MedSpa, then the supervising physician has to be a dermatologist or plastic surgeon ONLY IF the “primary” activity of the mid-level at the MedSpa is dermatologic, aesthetic, skin care services. 

Still struggling?  That’s because IT MAKES NEARLY NO SENSE AT ALL!  “You mean to tell me a primary care physician can co-locate his/her practice with the MedSpa and supervise the mid-level?”  Yep.  “But that a derm or plastic has to provide supervision if the MedSpa isn’t co-located with the MedSpa?”  Uh huh.   “And does the level of expertise of the supervising physician factor in at all?”  Nope.  Not one bit. “And the physician, in any case, can be off-site 100% of the time?” Yep.       

What if the APRN wants to provide primary care services at the location and is also an autonomous practitioner?  Does that bear on the issue?  Maybe.  The whole dermatologist/plastic supervising issue only comes into play when the mid-level is “primarily” providing dermatologic or aesthetic services at the location.  What does “primarily” mean?  Who knows.  It’s not defined, and the law that applies (s. 458.348) doesn’t specially authorize rules to be made to answer the question. 

As you can imagine, confusion in this space is driving different levels of compliance, from, zero to fully compliant.  But getting it right is seriously important to any licensed professional (mid-level and supervising physician alike) because they have professional licenses on the line.  Physicians and mid-levels who would like to keep their licenses untarnished will make sure they’re guided on (1) the laws, (2) the options, and (3) the risk of each option.   

 A 2018 Department of Justice civil settlement involving a Florida interventional pain physician was the most recent law enforcement driven examination into the kickback implications of surgeons co-owning anesthesia services providers together with anesthesiologists.  These “company model” arrangements were suspect out the outset because anesthesiologists originally owned anesthesia services companies 100%.  “Why then, did surgeons jump into ownership with the anesthesiologists,” it was questioned.  Presumably because the surgeons wanted to be paid for generating the anesthesia income.  While the most recent 2018 in the Daitch DOJ settlement involved 100% surgeon ownership, the DOF still alleged that surgeon ownership interest in the anesthesia company amounted to kickback.  The issue is front and center once again.     

Recent Company Model Case Settlement

An anesthesia services provider (Care Plus Management) agreed to pay over $7M to settle kickback allegations involving the following alleged facts:

1. Physician ASC owners received ownership in anesthesia services companies in exchange for their ASCs granting exclusive anesthesia services agreements to the anesthesia companies (in which the surgeons became owners); and
2. A whistleblower alleged that anesthesia company profits were split with referring GIs, vascular surgeons and podiatrists (also owners of the ASCs).   

The Care Plus Management case follows one back in November 2021 when three anesthesiologists and serval ASCs paid more than 28M facing similar allegations.  

Company Model Case Conclusion

These cases are curious because the view of regulators is clear and predictable.  If there is a benefit flowing from A to B, and patients or business flowing from B to A, all the kickback bells and whistles should go off.  Even more, the pathway for a legitimate business relationship that should withstand scrutiny is well established and well-lit in the Anti-Kickback Statute Small Entity Investment Interest Safe Harbor, which generally requires for instance—

1. A demonstrable need for the service and legal relationship;
2. Ownership and profit distribution related solely to investment; and
3. Proper documentation and compliant behavior.