Archive for July, 2011

EHR Incentive Programs

Friday, July 29th, 2011

With the exception of dually-eligible hospitals, providers can only participate in one of the EHR Incentive Programs—Medicare or Medicaid—each year.  This blog (with the assistance of some CMS resources) will outline key differences between the Medicare and Medicaid EHR Incentive Programs.

Eligible Participants in the Medicare EHR Incentive Program

  • Doctors of medicine or osteopathy
  • Doctors of dental surgery or dental medicine
  • Doctors of podiatry
  • Doctors of optometry
  • Chiropractors
  • “Subsection (d) hospitals” in the 50 states or DC that are paid under the Inpatient Prospective Payment System (IPPS)
  • Critical Access Hospitals (CAHs)
  • Medicare Advantage (MA-Affiliated) Hospitals

Eligible Participants in the Medicaid EHR Incentive Program

  • Physicians (primarily doctors of medicine and doctors of osteopathy)
  • Nurse practitioners
  • Certified nurse-midwives
  • Dentists
  • Physician assistants who furnish services in a Federally Qualified Health Center or Rural Health Clinic that is led by a physician assistant
  • Acute care hospitals (including CAHs and cancer hospitals) with at least 10% Medicaid patient volume
  • Children’s hospitals (no Medicaid patient volume requirements)

Dually-Eligible Hospitals
If you represent a hospital that meets all of the following qualifications, you are dually-eligible for the Medicare and Medicaid EHR Incentive Programs:

  • You are a subsection(d) hospital in the 50 U.S. States or the District of Columbia, or you are a CAH; and
  • You have a CMS Certification Number ending in 0001-0879 or 1300-1399; and
  • You have 10% of your patient volume derived from Medicaid encounters.
Resources

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

Florida Medical License–Common Patient Complaints

Thursday, July 28th, 2011

At Matthews Law Firm, P.A., we practice health law and deal with medical licensing issues in Florida.  A common question we receive from those in the field is ‘What are the most common patient complaints filed with the department?’

Typically, when a patient files a complaint with the Department of Health, the reasons include one or more of the following (note: this is NOT an exhaustive list):

 

  • Quality of care
  • Misdiagnosis of condition
  • Substance abuse
  • Advertising violation
  • Unlicensed practice
  • Inappropriate prescribing
  • Sexual contact with patient
  • Insurance fraud
  • Misfilled prescription
  • Excessive test or treatment
  • Failure to release patient records
  • Impairment/medical condition
  • Patient abandonment or neglect

Usually, the department will not get involved with the following types of complaints:

  • Fee disputes
  • Billing disputes
  • Personality conflicts
  • Bedside manner or rudeness

Being aware of the most common patient complaints can help a health practitioner adhere to proper standards of care and better protect his or her medical license.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

Florida Medical License–Disciplinary Action in a Nutshell

Wednesday, July 27th, 2011

If you practice medicine in Florida, then you know just how important your medical license is.  Your career and livelihood are attached to that medical license.

That is why doctors and physicians need to understand the regulatory process of what happens when the Department of Health receives a complaint.

The Regulatory Process in a Nutshell

Once a complaint has been lodged, the regulatory process begins.  Some parts of the process are confidential, while other parts are public record.  If a panel determines there is no probable cause to proceed, the complaint is dismissed.  However, if probable cause is found, then the licensee (the doctor/physician) will need to decide whether to contest the charges at an administrative hearing before the Board or to enter into a settlement agreement.  For a great flowchart of the process, go here.

Possible Disciplinary Action

Disciplinary action can include a reprimand, fine, restriction of practice, remedial education, administrative cost, probation, license suspension or license revocation.

Resources

DOH Complaint Forms (scroll over “Complaint Forms” to see the list.)

How Complaints are Investigated

How Complaints are Prosecuted

(Disclaimer: This post does not constitute legal advice nor create an attorney-client relationship.  If you are having medical license issues, please contact a qualified attorney to assist you.)

That’s A Crime?–Simulated Bullfights

Friday, July 22nd, 2011

This is Part 5, and the final post, in a series of blogs related to obscure and perhaps unknown Florida criminal laws.

In Florida, it is illegal to conduct a simulated bullfight.

Fla. Stat. 828.121 reads:  It shall be unlawful, and punishable as a misdemeanor, for any person to conduct or engage in a simulated or bloodless bullfighting exhibition.

Background:

A Westlaw search revealed no case law citing this statute.

Possible Legal Issues:

  • Note the penalty for this charge is classified as a “misdemeanor”, without clarifying whether it’s a first degree or second degree charge.
  • The statute does not say whether the bull has to be a real animal.  Would it apply to someone dressed in a bull costume?
  • How far does one have to go to have a “simulated” bullfight exhibition?  Is it enough to wave a red flag at a real or fake bull?  Is a crowd necessary?

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That’s A Crime?–Fake Florida Oranges

Thursday, July 21st, 2011

Is it possible to determine WHERE these oranges came from?

 

 

 

 

This is Part 4 in a series dedicated to obscure and unusual Florida criminal laws.

In Florida, the message is clear and simple: don’t mess with our oranges.  Florida statute 865.02 says:

Whoever ships foreign-grown fruit or oranges, representing by mark or otherwise that said fruit is the product of the state, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

That’s right, if a person picks an orange in Georgia and then ships it out with a stamp indicating the orange is from Florida, that person has just committed a crime punishable by up to 60 days in jail and a $500.00 fine.

Background

This statute became a law in 1883 and was last revised in 1971.

Application

A Westlaw search indicated no case history citing this statute.

Possible Noteworthy Issues

  • This law has to make one wonder, unless the suspect admitted that the oranges came from out-of-state, how would the authorities know with certainty where the oranges came from?  Is it possible for a fruit expert to examine an orange and determine that the orange did/did not come from Florida?  (If the only way the authorities determine the oranges came from out-of-state is from the suspect’s statements, would the state be able to get past a corpus challenge?
  • Jurisdiction:  Assume the oranges were picked in California, stamped with the Florida-grown stamp, and then shipped to Texas to sell.  How would Florida obtain jurisdiction?  Since there is no guidance in the statute, the law seems to strike against traditional notions of jurisdiction.  Unless the oranges were actually brought to or through Florida, proving jurisdiction may be difficult for the state.
  • The statute does not apply only to oranges, but also applies to “fruit” (leaving the door open for strawberries, blueberries, and any other fruit…).

In the end, this is what we know: Florida really loves its oranges…er, fruit.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

That’s A Crime?–Injuring Railroad Structures; Driving Cattle on Tracks

Wednesday, July 20th, 2011

This is Part 3 in a series of posts devoted to obscure and perhaps unknown Florida criminal laws.

 

Ever wondered about the ramifications of driving cattle onto train tracks in Florida?  Me either.  But now that we’re talking about it, go check out Fla. Stat. 860.11. The statute states:

Whoever otherwise wantonly or maliciously injures any bridge, trestle, culvert, cattle guard, or other superstructure of any railroad company or salts the track of any railroad company for the purpose of attracting cattle thereto, or who shall drive cattle thereon, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

It cannot be emphasized enough that this crime is a second degree felony, which means the maximum penalty is up to 15 years in prison.

Background

This statute became law back in 1881, and was last revised in 1971.

Application

A search in Westlaw indicated no case law history citing this statute.

Resources

  • Click here to read an interesting article discussing this statute as well as a few other weird Florida laws.
  • Although this law may seem a bit unusual, here’s why it may just be a good idea to have this type of law in rural areas containing livestock.  This tragedy happened in Ohio in 2010.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

That’s A Crime?–Willfully Damaging Art Works in Public Buildings

Tuesday, July 19th, 2011

This is Part 2 in a series of blogs dedicated to obscure and perhaps unknown criminal laws in Florida.

Let me ask you something, what is not art?  ~Author Unknown

Today’s post deals with willfully damaging works of art in Florida.  Although perhaps it is not a surprise that damaging art constitutes a crime, most folks might think the crime would fall under Criminal Mischief.  But did you know there is actually a Florida statute that directly deals with willfully damaging art works in public buildings?

The statute can be found at 806.14 (Fla. Stat.), and states:

(1) Whoever willfully destroys, mutilates, defaces, injures, or, without authority, removes any work of art displayed in a public building is guilty of a criminal offense.
(2)(a) If the damage to the work of art is such that the cost of restoration, in labor and supplies, or if the replacement value, is $200 or less, the offense is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) If the damage to the work of art is such that the cost of restoration, in labor and supplies, or if the replacement value, is greater than $200 but less than $1,000, the offense is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) If the damage to the work of art is such that the cost of restoration, in labor and supplies, or if the replacement value, is $1,000 or more, the offense is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 

Background

This statute first became law in 1980, and was last amended in 1991.

Application

While researching this statute in Westlaw, no case law history emerged.

Possible defenses

While there is no case law to support my argument, there may be several defenses to this charge:

  • The damage to the art was not done willfully.
  • The building was not a public building.
  • The damaged product was not art.

Of all three defenses, the third is perhaps the most interesting, because as the introductory quote to this blog suggests, what is NOT art?  What if the damaged property was a clock?  Is a clock art?  Not surprisingly, there is no definition of “art” in the statute.

(Disclaimer:  This blog is not intended as legal advice nor does it create an attorney-client relationship.)

That’s A Crime?–Advertising Drugs, etc., for Abortion

Monday, July 18th, 2011

This blog is the first in a series dedicated to obscure and perhaps unknown Florida criminal laws.

Did you know it is illegal in Florida to advertise for abortion?  The statute is 797.02 (Fla. Stat.), which states:

Whoever knowingly advertises, prints, publishes, distributes or circulates, or knowingly causes to be advertised, printed, published, distributed or circulated, any pamphlet, printed paper, book, newspaper notice, advertisement, or reference containing words or language giving or conveying any notice, hint, or reference to any person, or the name of any person, real or fictitious, from whom, or to any place, house, shop, or office where any poison, drug, mixture, preparation, medicine, or noxious thing, or any instrument or means whatever, or any advice, direction, information, or knowledge may be obtained for the purpose of causing or procuring the miscarriage of any woman pregnant with child, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The legislature deemed this crime to be a first degree misdemeanor, which means it carries a maximum penalty of 1 year in county jail and/or $1,000.00 fine.

Background

Interestingly, this law first took effect in 1868.  It’s gone through several amendments, the last of which occurred in 1971, and has once again fallen under the eye of the legislature.  In fact, there are current attempts being made to repeal or modify this Florida law.  (To see the Senate Bill 1748 proposing repeal, go here.)

Application

While researching this statute in Westlaw, I learned that the law has not been applied in state court decisions, at least not at the appellate level.  However, when exploring the internet trying to find when/where this law has been applied, I did find this.

(Disclaimer: This blog is not intended as legal advice nor does it create an attorney-client relationship.)

What is Reasonable Doubt?

Friday, July 15th, 2011

With the recent media coverage of the Casey Anthony trial, many in the public have voiced their opinion on whether or not the state proved its cased beyond a reasonable doubt.  People may have different concepts as to what is a reasonable doubt.  But how do courts define reasonable doubt, and what are jurors told about reasonable doubt before they deliberate?

In Florida, there is a jury instruction which defines (or at least attempts to define) reasonable doubt.  Judges will read this instruction to the jury in any criminal case.  Here it is:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt.  Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt.  On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

Well that certainly clears up the confusion, right?  WRONG!

Most lawyers agree that this instruction is as clear as mud, yet this is the definition Florida jurors are given.  Because the term “reasonable doubt” is so vaguely defined, perhaps this is the reason many people disagree whether the state met its burden of proof in closely contested trials.

(Note–This is not the only instance of confusing language in jury instructions.  For another example, read the self-defense instruction.)

Disclaimer–This post is not intended as legal advice nor does it create an attorney-client relationship.

Uniform Bond Schedules in Florida

Wednesday, July 13th, 2011

Ever wondered how bond amounts are chosen?

Most jurisdictions have a Uniform Bond Schedule which lays out the presumptive bond for the different degrees of criminal offenses.  The presumptive bond amounts can differ depending upon which circuit you are in.  For example, the presumptive bond on a second-degree misdemeanor in Polk County is $250.00 while in Sarasota County it is $120.00.

Following is a list of links for various bond schedules throughout our practice locations in Florida.

9th circuit (Osceola, Orange)

10th circuit (Polk, Highlands, Hardee)–Administrative Order 2-49.8

12th circuit (Desoto, Manatee, Sarasota)–Administrative Order 2010-6.3

13th circuit (Hillsborough)–Administrative Order S-2008-160

(Disclaimer–This post does not constitute legal advice nor does it create an attorney-client relationship.  Because bond schedules are subject to change and modification, do not rely on the bond amounts listed in the above-cited links.  Consult a qualified attorney if you have questions regarding bond amounts.)

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