Zoning & Use Issues For Healthcare Practices

Amanda Howard, Esq.

If you’re thinking about starting your healthcare practice from the ground up or purchasing an established practice and its real estate, zoning and use issues should be on your mind. It’s critical to understand what activities are allowed to be done, and perhaps more importantly, what activities are NOT allowed to be done on your soon-to-be property and the restrictions your building may be subject to. To figure these things out, you can research appropriate building codes and zoning information on your county’s property appraiser website and use interactive maps or obtain a zoning report or request a letter from your local planning and zoning office, which will summarize existing code requirements and highlight areas of potential non-compliance. In cases where a particular zone does not permit healthcare facilities, a zone change may be possible (but that’s a topic for another time).

Some questions that are important to ask in determining whether a particular property is suitable for your practice are as follows:

  1. Is zoning impacted by county or city regulations?
  2. What is your type of practice defined as under county or city zoning regulations?
  3. Which districts or areas permit your type of healthcare practice?
  4. Must your practice be outside of residential areas?
  5. Is your practice limited to a certain amount of square feet?
  6. Is your building subject to certain aesthetic requirements?
  7. Is there a setback requirement for your building?
  8. Can the services you provide only be provided during certain hours?
  9. How much parking is your practice allotted?

These questions may never cross a buyer’s mind. However, not knowing their answers and others may cause a major headache during the closing process and potentially even kill a deal to purchase a property. That’s why it’s important to get advice from a professional.

Get Help

As a boutique law firm dedicated to supporting the healthcare community, our goal is to help healthcare professionals comply with all laws so that they can be safe in their profession and practices.If you would like to learn more about zoning and use issues and get advice on how to proceed, contact us at Florida Healthcare Law Firm to set up a consultation today.

What Is an Apology Law in Medical Malpractice?

malpractice defense

Saying “I’m sorry” to a patient shouldn’t hurt your career.

This, essentially, is the primary directive of apology laws or statutes across the country: to stop a patient from using an apology from a medical provider against them in a court of law as grounds for a malpractice suit.

The idea is to grow a more honest and open conversation between patient and doctor, and to ensure that the patient has all the information possible about their medical care.

In some states, Florida included, the law is taken a step farther, requiring medical care professionals to not only inform their patients of all incidents that resulted in their harm but also to do so in person.

What Are the Apology Laws by State?

Not all states have apology laws, but Florida does.

Florida Statute 90.4026 states that an expression of condolences or sympathy by a medical professional should not be used as grounds for a malpractice suit.

This law means that it’s okay for a doctor to empathize with a patient when they experience a negative outcome after medical care or intervention. They can say, “I’m sorry this happened to you,” without that statement constituting an admission of guilt in a court of law.

However, Florida makes it clear that if a “benevolent gesture” is accompanied by an admission of wrongdoing or fault then that statement in its entirety can be used in a malpractice suit.

Additionally, while the Florida Statute does not require a doctor to apologize or express sympathy or condolences, it does require them to report to the patient any level of harm that resulted from medical treatment.

For example, if internal sutures during a surgery were not done correctly and caused internal bleeding, the doctor would be required to let the patient know rather than just ignore the situation.

When Would the Apology Law Come Into Play?

If a doctor discovers after the fact that there was more information available about the patient’s condition and that information would have altered their choices, the doctor might apologize to the patient for the choices they made medically that resulted in harm to the patient. If that apology comes with an admission of wrongdoing, then that apology would be admissible in court as evidence supporting the patient’s case.

However, if that apology did not include an admission of fault, the patient will be required to depend on other evidence of malpractice if they believe that malpractice or negligence was indeed the cause of harm.

How Does the Apology Law Impact You?

If you are dealing with the apology law in a malpractice suit, reach out to the Florida Healthcare Law Firm for assistance. We can help you address the situation and move toward a speedy resolution. Call now.

How to Report an EMTALA Violation


All people in the United States have the right to emergency medical care, and the EMTALA law seeks to ensure that this right is upheld in all situations.

When it is not, those who are witness to the refusal of emergency medical services can report the violation of the EMTALA law.

What Is EMTALA Law?

The Emergency Medical Treatment and Active Labor Act (EMTALA) protects people who do not have insurance from being denied medical care due to the inability to pay for treatment.

Essentially, it is required that all hospitals and the doctors who work there provide emergency medical treatment to whomever needs it, regardless of their insurance status.

What Is an EMTALA Violation?

When a hospital or doctor employed by a hospital refuses a patient emergency medical treatment they need due to lack of insurance, it is a violation of the EMTALA law.

The fine for this violation can be as much as $50,000 for the hospital and the physician. These fines are not covered by malpractice insurance.

A further penalty could include denial of participation in the Medicare program to the hospital or doctor.

How Do I Report an EMTALA Violation?

Reach out to the local Centers for Medicare & Medicaid Services (CMS) and let them know that you would like to file an EMTALA complaint. If you prefer, you can do this anonymously.

At that point, they will take a full report from you on what happened, so they can investigate the incident and make a determination. They will need the location, date and time, names of the people involved, the extent of the injuries, and details on what exactly happened.

Do I Need Help to Report an EMTALA Violation?

No. If all you’d like to do is file a report on a hospital for an alleged EMTALA violation, you can go to CMS and they will assist you.

If you believe you require legal support due to an EMTALA violation, contact us at Florida Healthcare Law Firm today.

The Five Levels of The Medicare Appeal Process

medicare appeals pricess

medicare appeals pricessBy: Zach Simpson

There might be times when Medicare denies coverage for an item, service, or test that you or your company provided. In the event this occurs you have the right to formally disagree wit the decision and encourage Medicare to change it. Therefore, understanding the appeals process for Medicare claims is vital for all providers. The aim of this article is to give providers a better understanding of the five (5) levels of the Medicare Appeal process, and what must occur at each level.

The Medicare Fee-For-Service (FFS) has five levels in the claims appeal process:

Level 1 – Redetermination by a Medicare Administrative Contractor (MAC)

Level 2 – Reconsideration by a Qualified Independent Contractor (QIC)

Level 3 – Disposition by Office of Medicare Hearings and Appeals (OMHA)

Level 4 – Review by the Medicare Appeals Council (Council)

Level 5 – Judicial review in U.S. District CourtContinue reading

6 Essential Questions For Audit Preparedness

medical practice audit

medical practice auditBy: Zach Simpson

As you train your staff on the changes that were recently made regarding evaluation and management coding it is very important to ensure that your staff understands the auditor’s perspective as well. There are four distinct portions of an auditor’s tool when evaluating the documentation guidelines for office/outpatient evaluation and management (E/M) services (99202-99215). The four distinct portions are diagnoses, data, risk, and calculation of medical decision making (MDM).  In order to ensure that a provider’s progress note is complete in the auditor’s eyes the provider should ask themselves the following six questions to create the best chances of successfully meeting the auditors expectations:

  1. Does my progress note contain a medically appropriate history and examination?
  2. Were my diagnoses addressed appropriately?
  3. Did I document all orders and data reviewed?
  4. Were other professionals included in my documentation that I worked with?
  5. Was an independent historian used?
  6. Does the documentation support the level of risk I chose?

For the remainder of the article, I am going to dive deeper into each question above so that you, as providers are able to recognize insufficient areas in a provider’s E/M documentation when you perform a self audit to better your practice.Continue reading

Permissible Payments For Referrals Under The Federal Anti Kickback Statute

anti kickback

anti kickbackBy: Karen Davila

The term “payment for referral” strikes fear in the hearts of health care providers throughout the country because of the significant prohibitions under the federal Anti-Kickback Statute (AKS).  And, Florida’s Patient Brokering Act (PBA) casts an even bigger shadow over arrangements involving payment in exchange for referrals.  There are other statutory restrictions as well, which may apply depending upon the services for which a referral is being made.  Those include but are not limited to statutes prohibiting physician fee-splitting and the federal Eliminating Kickbacks in Recovery Act (EKRA) (applicable to referrals to recovery homes, clinical treatment facilities, or laboratories in an effort to stave off growing opioid-related fraud), and the potential collateral damage of a false claim under the federal False Claims Act (FCA) if any of the above statutes are violated.

So, is there any scenario where a payment may be made by a health care provider in exchange for referrals?  The answer is yes- there is a safe harbor under the AKS (42 U.S. C. §1320a-7b(b)) specifically for such arrangements.  This safe harbor is not commonly used and likely means revision to existing arrangements to come into compliance with its specific requirements.  But it may be worth considering if the referral (and payment for that referral) is not otherwise prohibited as noted above.Continue reading

Drug Waste A Big Money Issue & How Providers Can Recoup The Cost of Unused Drugs on Medicare Part B Claims

drug waste

drug wasteBy: Zach Simpson

In today’s practices there are many circumstances that call for the discarding of unused portion of drugs, and because of this drug waste can be a big-money issue for many practices. A perfect example is Botox which must be used within five hours of reconstitution, and if it is not used within that timeframe the only option a provider has is to discard the unused supply. What many providers may not be aware of though is that money can be recouped for drugs that have been discarded. The aim of this article is to educate providers that when applicable they may report drug waste in addition to the drug and its administration for Medicare Part B claim reimbursement.

How to Properly Report

For a provider to recoup and report the drug waste they must report the administered drug using the appropriate HCPCS Level II supply code, and the correct number of units in box24D of the CMS-1500 form. As a second line-item providers will want to enter all of the wasted units. It is very important to ensure that the provider documentation verifies the exact dosage of the drug injected, and the exact amount of and any reason for waste. Be aware If the provider did not assume the cost of the drug or administer the drug to the patient they may not bill for the unused portion.

In addition to listing the wasted units as a second line-item certain local contractors may require you to use the modifier JW Drug amount discarded/not administered to any patient to identify an unused drug from single-use vials or single-use packages that are appropriately discarded. Be aware that is inappropriate to use the modifier JW with an unlisted drug code. Therefore, it is imperative to be aware of the local contractor requirements, and appropriate drug codes.Continue reading

A Quick Refresher On Medicare’s Requirements For Self-Reporting & Returning Overpayments


By: Zach Simpson

With the current healthcare environment many providers looked to alternative methods of treating patients and achieving outcomes this past year due to the pandemic. To meet the needs of their patients, and their financial obligations many providers implemented services that were not customary to their practice, or their billing departments. As is the case for any office that begins to provide something new there is always the potential for error in any aspect of the practice involved with the patient or claim. Therefore, I believe it is a great time to refresh providers on the procedures for reporting and returning Medicare overpayments as they are discovered moving forward.

As many of you are aware in 2016 the Centers for Medicare and Medicaid Services (CMS) published a final rue pursuant to Section 1128J(d) of the Social Security Act (the Act), as amended by the Affordable Care Act, that requires Medicare Parts A and B health care providers to report and return overpayments 60 days after the date an overpayment is identified, or the due date of any corresponding cost report, if applicable, whichever is later. If credible information indicates that an overpayment exists, the rule requires that a reasonably diligent inquiry must be performed.

Continue reading

5 Easy Steps To Implement An ABN Into Your Practice’s Standard Procedures

adding abn to your medical practice

adding abn to your medical practiceBy: Zach Simpson

Due to the increasing number of forms being required these days it is all too common for practices to get lost in the vast terminology, rules, and coding requirements that have to be followed as well. An area that practices have one of the most difficult times with is operationalizing the issuance of an ABN properly. I am frequently asked to consult for practices that ask who does which part, when, and with whom in regards to ABNs? In other instances, many practices I have worked with simply make the mistake that they can solve the complexities of trying to understand the nuances of how to properly utilize ABNs by deciding to issue ABNs to every Medicare patient for every service which is not a viable option either. The solution that many offices try that I just described is called issuing blanket ABNs, which in turn may cause Medicare to invalidate all issued ABNs from the practice, including those that may been appropriate which is why it is very important that blanket ABNs are never issued.

One thing in common with practices that issue ABNs in a proper manner is that they all have a process in place for identifying potential denied services prior to delivering them. To many practices this may sound easy, but to ensure that your practice is as effective as possible it will take some claims data analysis to ensure that your practice is capturing all potential opportunities for ABN issuance. The aim of this article will be to provide practices with 5 steps that will make ABN issuance easier.Continue reading