False Claims Act Case Beaten by Bona Fide Employee Arrangement

false claims actBy: Jeff Cohen     

One healthcare employer’s compensation arrangement with its employees just got much needed support from the 11th Circuit Court of Appeals.  The employer there, which provided AIDS patients certain healthcare related services, paid its employees a bonus of $100 per patient.  The case was brought on the argument that the compensation arrangement constituted an illegal kickback under the federal Anti- Kickback Statute.  The court, however, disagreed because the employees who received the bonuses were “bona fide employees.”

The court’s focus on the plain language of the safe harbor for bona fide employees was refreshingly clear, notably that “any amount paid by an employer to an employee (who has a bona fide employment relationship with such an employer) for employment in the furnishing or any item or service.”  Essentially, any amount paid by an employer to a bona fide employee is not considered to be “remuneration” under the Anti-Kickback Statute.Continue reading

State Court Ruling on Patient Brokering Act Threatens Healthcare Facilities and Providers

patient brokering actA recent ruling by a state trial court handling the Palm Beach County Sober Home Task Force prosecutions against providers of addiction treatment and sober home services is creating lots of confusion and alarm around the state and could have very far reaching consequences for the entire healthcare industry well beyond addiction treatment.

The issue presented by the prosecution focuses on whether a person charged with violating the state’s Patient Brokering Act (PBA) can be found guilty even if he/she didn’t know what he was doing was unlawful. The PBA broadly prohibits paying someone for patient referrals, very much like the federal Anti-Kickback statute.  If allowed, the client would have gotten legal advice, paid for it, followed it, and still not be able to show a judge or jury that, despite all their best efforts, they simply followed the law as instructed.

Can a healthcare facility or provider be guilty of violating a criminal law [the PBA] if they’d gotten legal advice and followed it?  Traditionally, the answer would be a clear “no.”  The argument against the State’s position would be something like “How can someone intend to violate a criminal law if they got legal advice regarding how to comply with it and then followed that advice?”  The argument of the state might look something like “We don’t even think the judge or jury ought to be able to hear that the person got legal advice and followed it.”  The court punted the issue to the appellate court.Continue reading

Healthcare Compliance: Providers Must Use Plans They Have in Place

medical practice complianceBy: Jacqueline Bain

In 2015, Assistant Attorney General Leslie Caldwell spoke publicly about the importance for every healthcare provider to not only have a compliance program on its shelf, but also being sure that the compliance program is “tailored to the unique needs, risks and structure of each business or industry.” Assistant Attorney General Caldwell explained, “the adequacy of a compliance program is a factor when [the DOJ] decide[s] how and whether to prosecute a company.  The lack or insufficiency of a compliance program can have real consequences for a company when a violation of law is discovered.”Continue reading

Is Your Substance Abuse Marketing Service Licensed? Check Here

healthcare fraud

addiction marketingBefore doing business in Florida, an entity providing substance abuse marketing services must be licensed by Florida’s Department of Agriculture and Consumer Protection. This includes includes either telephone solicitation from a location in Florida or solicitation from other states or nations for substance abuse and addiction treatment centers located in Florida.

As of November 27, 2017, only the following entities are licensed by the State of Florida to provide marketing services to substance abuse and addiction treatment centers:

  • A Way and a Means, LLC (Delray Beach, Florida)
  • Addiction International Holdings, LLC d/b/a The Addiction Advisor d/b/a The Recovery Miracle (Boca Raton, Florida)
  • Advanced Recovery Systems, LLC (Winter Park, Florida)
  • Bandwidth Interactive Company d/b/a Local Management (Boca Raton, Florida)
  • Delphi Behavioral Health Group, LLC (Fort Lauderdale, Florida)
  • Freedom From Addiction, LLC (Miami Beach, Florida)
  • Infoworx Direct, LLC d/b/a Addiction Hope and Help Line (Boca Raton, Florida)
  • Invigorate Solutions, LLC d/b/a Local Management (Boca Raton, Florida)
  • Meridian Treatment Solutions, LLC (Lauderdale by the Sea, Florida)
  • NPA Consulting Group, LLC (Pompano Beach, Florida)
  • Palm Partners, LLC (Palm Springs, Florida)
  • Parent Team, LLC (Santa Rosa, California)
  • Pryme Time Media, LLC (Sunrise, Florida)
  • R360, LLC (Fort Lauderdale, Florida)
  • Redwood Recovery Solutions, LLC d/b/a com (Riviera Beach, Florida)
  • Ring2Media, LLC (Westport, Connecticut)
  • Rybchinskiy Inc. (Boynton Beach, Florida)
  • Sober Network, Inc. (Delray Beach, Florida)
  • The Addiction Network, LLC (North Miami, Florida)
  • True Choice Health Group Limited Liability Company (Pompano Beach, Florida)
  • United Addiction Specialists, LLC (Hollywood, Florida)
  • USR Holdings, LLC (Coconut Creek, Florida)

It is a third degree felony for: any person to work for an entity that does not have a current and valid license; or for any entity to invite telephone calls or other communications with a substance abuse marketer who is soliciting clients without a current and valid substance abuse marketing license; or for any person or entity to solicit without a license; or for any person who otherwise violates the law requiring licensure either directly or indirectly. Any person who is convicted of a second or subsequent violation commits a felony of the second degree.

The Truth About Healthcare Regulatory Compliance

false claims act

medical practice complianceBy: Jeff Cohen

Healthcare regulatory compliance is too damn complicated sounding and scary!  What the heck does it even mean?  Basically it means making sure you’re following about a dozen specific laws, some of which interrelate.  It’s a little like making a cake.  You have to make sure you have flour, eggs, sugar and so on.  And then you have to make sure you put enough in the bowl and bake it at the right temperature.  So what’s so unique re healthcare regulatory compliance?  Healthcare professionals and businesses are inundated by these confusing laws written in legalese, to the point where they go numb.  They lose the ability to focus on them and to take them seriously.  And they hire someone that uses the word “consultant” or “compliance”; and they think they’ve got compliance covered.  But they don’t.  And that’s a big mistake in the healthcare world!Continue reading

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.

CLICK HERE for: SUBSTANCE ABUSE MARKETING SERVICE PROVIDER LICENSE APPLICATION

Recovery Business Marketing 2.0

By: Jeff Cohen

Concepts that drive sober home relationships like Anti-Kickback Statute, Patient Brokering Act and Safe Harbor have become ingrained in the minds of nearly every addiction treatment provider’s thought process, especially in Florida with the development of the Sober Home Task Force.  Providers now seem to fully embrace ideas like–

  • There’s a federal law (the Anti-Kickback Statute, the “AKS”) that can bring criminal liability for marketing done incorrectly;
  • There’s a state law, the Florida Patient Brokering Act (“PBA”), that can do the same;
  • Complying with the federal safe harbors and the bona fide employee exception is important, even when there are no state or federal healthcare program dollars involved;
  • Paying anyone for marketing, not just on a commission based sales model, without fully appreciate the applicable laws is dangerous, costly and invites criminal inquiries and liability; and
  • Achieving compliance with applicable federal law should be part of any recovery business’ overall compliance plan.

Recovery providers must become familiar with not only the AKS and state restrictions like the PBA, but also the law’s permitted examples, so called “Safe Harbors,” which specify specifically permitted arrangements (42 CFR 1001.952).  The “personal services arrangement and management contract” Safe Harbor, for instance, has particular application in the area of marketing, as does the AKS exception for “bona fide employment arrangements,” which apply to “bona fide” W-2 employees (entailing direction, supervision and control), but not independent contractor relationships.Continue reading

The Patient Brokering Act and Addiction Treatment

anti kickbackBy: Jeff CohenFlorida Board Certified Healthcare Lawyer 

Followers of the addiction treatment industry should be on high alert after the arrest of Christopher Hutson of Whole Life Recovery.  The arrest marks the first arrest of any industry provider utilizing the state Patient Brokering Act (PBA).  Relying solely on the allegations, the arrest is based on a business relationship between the provider and sober homes.  Discussion in the “case management agreement” referred to in the arrest affidavit circles around some key allegations that include or imply (1) payment for patient referral, and (2) services by sober homes paid for by Whole Life which were not actually performed.

Serious industry providers absolutely MUST be well educated by lawyers who have years’ experience dealing daily with issues that include the federal Anti-Kickback Statute (and safe harbors), the bona fide employee exception to the AKS, the PBA and how insurers and regulators (inside Florida and outside Florida) interpret and apply such laws.  Any contract (like the sort of agreement referred to in the arrest warrant affidavit) that isn’t preceded by careful client education about the laws, the options and risks of each option is just reckless.  Clients who are well educated will understand things like—Continue reading

Fee Splitting: Clearing Up the Confusion

anti kickbackHealthcare professionals and businesses are aware of the term “fee splitting,” but rarely understand what that means, and for good reason.  Is there some federal law against that?  No.  Is there a state law?  Yes, but definitions are elusive and confusing.

Florida law prohibits licensed healthcare professionals engaging in any split-fee, rebate, commission or bonus in exchange for referral of any patient.  In particular, Section 456.054 states it is a violation of a state criminal statute for a “healthcare provider” to “offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.”

Is there a court in Florida that has interpreted that law or opined on the concept?  Not exactly.  The closest thing we have is the Crow decision, where the 5th District Court of Appeals affirmed a Board of Medicine handling an issue involving the concept.Continue reading

The OIG Addresses Free Patient Transportation Issues

vanBy: Jacqueline Bain

The issue of whether a medical provider can provide free patient transport is one that we are asked to look into a few times every year. Aside from the liability issues that it raises, it is one that we have never been able to justify from an Anti-Kickback and Patient Brokering perspective.  The fact is, even given the good intentions of most providers to allow their patients easier access to healthcare, transporting patients to and from your facility or practice is providing them with something of value in return for coming to see you.  However, under slightly different facts than we are usually asked to consider the question, last week, the Department of Health and Human Services Office of the Inspector General (“OIG”) came to a different conclusion.

The OIG issued an advisory opinion upon the request of a hospital system who had asked whether it could provide free transportation to persons who had limited access to public transportation to access the hospital’s facilities. The hospital system offered that the town had inadequate and infrequent public transportation services which would act as a barrier to healthcare for local residents.  The hospital system offered the following facts for consideration:Continue reading