If the number of projects we are working on for out-of-state companies expanding in Florida is any indication of Florida’s rebounding economy, the state is in good shape. The firm works with national companies and their chief counsel so frequently that we added a page to our website on Florida expansion legal services.
I like to think we play nicely in the sandbox with in-house and chief outside counsel for these organizations, helping them look good to their clients while doing or confirming their Florida research. We suggest revisions to business plans to better structure the venture to thrive in Florida’s regulatory environment. Sometimes, based on experience in the state, we share information and contacts that grease the skids in the regulatory or licensure process. Any lawyer in any state can read a statute, but local context and experience distinguishes the service.(And there’s that little unlicensed practice of law issue too.) Work for these clients generally involves answering varieties of these two questions:
1. Do we need a license for this?
2. Will the attorney general put us in jail [or the Board of Medicine revoke our license] for this?
Health care clinic. Florida does not have a prohibition against the corporate practice of medicine, which exists in many states. That means non-physicians can own companies that employ physicians to treat patients. But they do so at a cost. In Florida, each site has to register as a Health Care Clinic, pay a $2,000-per-location registration fee, submit owners’ fingerprints and provide financial projections signed by a Florida CPA. Some of what we do is determine if the registration is truly required, and, if it is, assist in the registration process. It is complicated, but perhaps less so than the friendly-PC models required in other states.
Certificate of Need. Generally speaking, Florida does not have the ability to put a red light on healthcare ventures in Florida unless they involve the formation of a new hospital facility. No “certificate of need” or “CON” is needed for surgery centers, home health agencies, imaging centers or laboratories in Florida, unlike in other states.
Mini-Stark. Florida’s version of the federal Stark Law (we call it mini-Stark or baby-Stark), prohibiting physicians from owning companies to which they refer patients, is very unique. It applies not just to Medicare or Medicaid, but to services regardless of payer. In that way, it’s more expansive than the federal law. But there are exceptions to things like the definition of “designated health services” that aren’t in the federal law. My mini-Stark mantra: “Florida. Is. Different.”
Fee Splitting Prohibition. One really unique statutory scheme to Florida is the fee splitting prohibition in the Medical Practice Act. It makes it grounds for discipline for a physician to split fees with another company. After practicing in Kansas and Missouri early in my career and relocating to Florida, I found this prohibition and the Board’s interpretations of it so interesting and challenging that I wrote a book about it. This law impacts percentage compensation arrangements between companies and physician groups, particularly when marketing services are provided by the company. Percentage-compensation joint ventures with physicians that are permissible in other states just don’t work here.
Strange, perhaps, but keep in mind, it is Florida. What do you expect?