24 Broad and Cassel Attorneys Named to Chambers USA 2017

ORLANDO, Fla. (May 26, 2017) — Florida-based law firm Broad and Cassel LLP has once again received recognition by prominent legal guide Chambers USA: A Guide to America’s Leading Business Lawyers. In total, the 2017 edition highlights 24 Broad and Cassel attorneys as leaders in their respective fields, while the firm is listed as among the best in seven statewide practice areas.

The firm’s nationally recognized Health Law Practice Group once again received top honors within Florida – ranking six individual attorneys in addition to the group’s collective Band One ranking, the highest ranking awarded by Chambers USA. One of the group’s leading attorneys, Fort Lauderdale Managing Partner Gabriel Imperato, received national recognition in health care, ranking among the best in the country.

Additionally, the firm received recognition for its work in the following practice areas: Banking & Finance, Construction, Healthcare, Litigation: General Commercial, Litigation: White-Collar Crime & Government Investigations, Real Estate and Real Estate: Zoning/Land Use.

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Posted in Gabriel Imperato, Honors and Awards, Lester Perling, Mike Bittman, Mike Segal, Stephanie Russo, Stephen Siegel | Tagged , , , , , , ,

Amendment 7 Not Preempted By Federal Law

By: Timothy Wombles

In a recent case, Charles v. Southern Baptist Hospital of Florida, Inc., the Florida Supreme Court held that hospital and physician incident reports required by Florida law are not protected from discovery by the Federal Patient Safety and Quality Improvement Act (“PSQIA”) and Amendment 7 is not preempted by federal law.

Proposed by citizen initiative and adopted by constitutional amendment in 2004, Amendment 7, which continues to be called by its ballot designation, permits individuals to request adverse medical incident records from health care facilities or providers. Hospitals and physicians are required to create and maintain adverse medical incidents records by the Florida Statutes.

Congress passed the PSQIA in 2005 to “facilitate an environment in which health care providers are able to discuss errors openly and learn from them” in response to an Institute of Medicine report detailing the prevalence of medical errors and preventable deaths in the United States. The PSQIA specifies that reports regarding patient injuries, known as patient safety work product (“PSWP”), may be collected in a patient safety evaluation system to share with a patient safety organization. PSWP is confidential and protected from disclosure by the PSQIA. Alternatively, data collected or developed separately from a patient safety evaluation system is not PSWP.

In the case at hand, Jean Charles, Jr. filed a medical malpractice lawsuit on behalf of his sister against Southern Baptist Hospital of Florida (‘Southern Baptist”). Pursuant to Amendment 7, Charles sought adverse medical incident records from Southern Baptist. The Duval County Circuit Court found that incident reports and other records Charles requested were not PSWP since they were collected “for a purpose other than submission to a patient safety organization or for dual purposes” and granted orders compelling production of the records to Charles. Southern Baptist challenged the ruling by filing a writ of certiorari with the First District Court of Appeal. Granting the petition and quashing the circuit court’s orders, the First District Court of Appeal held that since Amendment 7 required the hospital to provide records protected from disclosure by the PSQIA, federal law preempted the Amendment 7 request.

The Florida Supreme Court reversed the appellate decision, agreeing with the circuit court compelling the hospital to produce the adverse medical incident records under Amendment 7. Southern Baptist created the adverse medical incident records to comply with Florida law, so the Court found that the records were created for a dual purpose. Since the adverse medical incident records were not created solely for submission to a patient safety organization, the records were excluded from PSWP. As records excluded from PSWP are not protected from disclosure by the PSQIA, the Supreme Court held that federal law did not preempt Amendment 7.

Florida hospitals and physicians should to be cognizant that records collected solely for reporting to a patient safety organization are protected from disclosure by the PSQIA. Records collected simultaneously for submission to a patient safety organization and any other purpose, even to comply with Florida law, fall outside of the discovery protections of the PSQIA.


Posted in Regulatory, Timothy Wombles | Tagged , , , , , , , , , , , ,

Adjusting Group Practice Compensation in a World Turning Value-Based (Part I of II)

By: Mike Segal

    Payors are beginning to take steps to transform from reimbursement based on medical services rendered, or “fee for service” medicine, to payment for attaining quality measures without regard to volume, which is often called “value based” care.  The trend is expected to continue to accelerate, significantly as a result of The Medicare Access and CHIP Reauthorization Act of 2015 (“MACRA”), which began to apply this year, and will begin to affect Medicare reimbursement in 2019.  Virtually every physician is subject to MACRA, and his or her income can be affected based upon his or her scores, or those of his or her medical group, in the MACRA value based valuations.   MACRA offers two alternatives.  A physician can be judged under the MIPS scoring system, or as an APM.  While APM status offers more potential economic reward (and MACRA is heavily weighted toward cojoling physicians to move into APM status) it also bears more risk, and many physicians and medical groups will remain in MIPS status for a time.  Either way, significant reporting of quality standards is required, everyone will be rated (MACRA is a competitive program), and results will be obtainable by patients on the internet.

  In addition, both Medicare and commercial payors are, through MACRA and other means, pushing physician groups to accept more risk, and to be responsible to have their reimbursement reduced if costs rise too much, or quality of performance falls below a certain standard.

   In my experience of more than a quarter century in helping to create and maintain medical group practices, physician groups are typically divided into multiple “care centers,” with each care center retaining income based on a revenue collected, predominantly fee for service, “eat what you kill” (or, as we often call it, “eat what you heal”) compensation system.  If there is more than one physician working in the care center, the care center physicians are free to determine their compensation in any manner they choose so long as the system complies with all laws and the central Board approves, but any such compensation structure is almost always fee for service based.  While the groups do often attempt to monitor quality of service, and to hold themselves out as quality providers, they have not previously been required to meet all the requirements of MACRA.

    Clearly the compensation formulae developed over so many years for group practices are going to need to be re-addressed.  I have read many articles on this subject.  It seems that many groups throughout the country are in the process of adjusting their compensation formulae to provide for a portion (usually between 15-25%) of compensation to be determined based on “value based” criteria.  I think that, as MACRA becomes better understood and, although perhaps grudgingly, accepted, the pressure to revise the manner of determining compensation will increase.

 There are, however, two formidable barriers to making this happen.  First, group leadership must be convinced that a change is necessary, and then agree on an appropriate revision.  Second, the group must get the necessary vote of its partners/members.  For most groups, a vote of at least 2/3 of the partners/members is necessary to revise the standard compensation formula.  As a result, amending a compensation formula where many physicians will at least perceive that they will not fare as well is a formidable challenge.

  In our next newsletter I will publish Part II of this article.  There I will provide specific ideas for adding value based concepts to compensation, and will discuss what has been done by others to  be able to convince the group’s physicians to make the necessary revisions.


Posted in Mike Segal, Regulatory | Tagged , , , , , , , , ,

Compliance Leaders Offer Sound Advice at Orlando Health Care Forum

ORLANDO, Fla. (May 4, 2017) – The risks to Florida health care providers from enforcement activity is at an all-time high. But, how do providers develop and maintain a culture of compliance? It starts at the top, according to attorneys at Broad and Cassel.

During the firm’s Third Annual Orlando Health Care Forum, attorneys from the Health Law Practice Group alongside local and national leaders in healthcare compliance discussed board responsibility as well as board and executive leadership strategies and pitfalls.

“Our organizations are under threat from the government, whistleblowers and payers,” said Partner Michael Bittman, co-chair of the Health Law Practice Group, in his opening remarks. “There is a huge effort under foot to hold organizations and their executives accountable. The government is taking the position that the way to change corporate culture is through individuals.”

The forum kicked off with a fireside chat between Managing Partner Gabriel Imperato and Cigna Corporation’s Chief Compliance Officer Thomas F. O’Neil III discussing the board’s responsibility in compliance oversight.

“At the end of the day, if leaders aren’t assessing risks, you’re really vulnerable,” said O’Neil. He further noted the importance of transparency by management, embracing integrity and ensuring the board has the tools and information it needs to be effective.

During a panel discussion on board strategies and pitfalls, Withum Senior Policy Advisor Al Gutierrez commented that compliance officers are the corporate citizens for the organization and need to hold that attitude personally. He also suggested compliance officers engage more in scenario-based planning to prepare for an event.

“The whistleblower risk is so acute in the health care industry, you ignore any report of noncompliance at significant risk,” said Imperato. “Even an innocuous report can become a nightmare for an organization.”

The Health Forum concluded with a panel on health plan overpayments. Panelists included Michael Bittman, Michelle J. d’Arcambal of d’Arcambal Ousley & Cuyler Burke, and Jeanmarie Loria of Advize Health. Panelists reviewed pre-litigation considerations as well as litigation strategies and pitfalls tied to overpayments. “Don’t wait for an audit. Audit yourself,” said Loria.

Bittman went on to say, “Compliance must start at the top and permeate the organization. The delivery of a problem early is good news. The delivery of a problem late is very bad news.”

Broad and Cassel will host its seventh annual South Florida Health Forum in Fort Lauderdale this fall. The statewide law firm has built one of the most experienced and diversified Health Law Groups in the Southeastern United States. The firm has more lawyers certified in Health Law by the Florida Bar Board of Legal Specialization & Education than any other firm. Several of the firm’s health lawyers are certified by the Health Care Compliance Association in Health Care Compliance and are Certified Dispute Resolvers with the American Health Lawyers Association. Broad and Cassel’s health lawyers are widely published and frequently make presentations at leading educational programs throughout the country. Information on the firm’s health law events and industry and attorney news can be found on Broad and Cassel’s Health Law Blog at www.healthlawfla.com or on Twitter at www.twitter.com/healthlawfla.

Posted in Compliance, Health Forum | Tagged , , , , , , , ,

The Need for More Data Analytics Professionals in South Florida

By: Paul R. DeMuro

Increasingly around the country and in South Florida, employers and other stakeholders are looking to hire data analytics professionals who can critically analyze data to help them grow and manage their businesses and to be more effective. Although there are quite a number of computer science and engineering programs, and even some informatics programs in South Florida, the skills that many employers are looking for increasingly are in the areas of data science and data analytics.

When I was in Grand Rapids, Michigan a few months ago on the campus of tiny Calvin College (less than 4,000 students), I noted the school had offerings in both areas. When I met with the President of Claremont McKenna College (CMC) in Southern California (less than 1,400 students) a few weeks later, I was advised that CMC was developing an interdisciplinary computer science program, focusing on data analytics. CMC is seeking to equip students in the liberal arts with the ability to critically analyze data in their chosen fields.

To continue reading, please visit South Florida Hospital News and Healthcare Report.

Posted in Paul DeMuro, Technology | Tagged , , , , , , , , , ,

Cigna’s Global Compliance Officer Thomas F. O’Neil to Keynote Broad and Cassel’s Orlando Health Care Forum April 21

ORLANDO, Fla. (March 20, 2017) — Establishing and maintaining a culture of compliance is critical to the success of today’s health care organizations. That’s why attorneys from Broad and Cassel’s nationally recognized Health Law Practice Group alongside professionals from some of the nation’s leading health care companies will discuss board compliance oversight at the third annual Broad and Cassel Orlando Health Care Forum April 21.

Headlining the forum is Thomas F. O’Neil, III, global compliance officer at Cigna Corporation. In an armchair chat, O’Neil will sit down with Managing Partner Gabriel Imperato to discuss board responsibility for compliance oversight. O’Neil is a former federal prosecutor who has served as the general counsel of a major telecommunications company, the chair of the government affairs practice of a global law firm, and the executive vice chairman of a national managed care organization.

Following the keynote session, panel discussions will take place addressing board and executive leadership strategies and pitfalls and perspectives on health plan overpayments. Those panels will feature attorneys from Broad and Cassel as well as officers from Advize Health, Cancer Treatment Centers of America, d’Arcambal Ousley & Cuyler Burke, Florida Hospital Medical Group, Pershing Yoakley & Associates, PYA and Withum.

What:               Third Annual Broad and Cassel Orlando Health Forum

There is no cost to attend and registration includes lunch at noon and a reception following the presentations. To register, click here or contact Elizabeth Levine at elevine@broadandcassel.com or 407-839-4229.

When:              Noon-5 p.m.      Friday, April 21

Noon                Registration and lunch

1 p.m.               Presentations begin

4 p.m.               Reception for participants and speakers

Where:             Broad and Cassel, 390 N. Orange Ave., Suite 1400, Orlando, Fla.

Broad and Cassel has built one of the most experienced and diversified Health Law Groups in the Southeastern United States. The firm has more lawyers certified in Health Law by the Florida Bar Board of Legal Specialization & Education than any other firm. Several of the firm’s health lawyers are certified by the Health Care Compliance Association in Health Care Compliance and are Certified Dispute Resolvers with the American Health Lawyers Association.

Information on the firm’s health law events and industry and attorney news can be found on Broad and Cassel’s Health Law Blog at http://www.healthlawfla.com/ or on Twitter at http://www.twitter.com/healthlawfla.

Posted in Health Forum, Uncategorized | Tagged , , , , , ,

Broad and Cassel Bolsters Health Care, Bankruptcy Groups with Focus on Insolvency, Adds Two Partners from GrayRobinson

We are pleased to announce Frank P. Terzo and Michael D. Lessne have joined the Fort Lauderdale office as partners, beefing up the firm’s health law and bankruptcy practice groups while creating a new health care insolvency service for the firm.

“With the addition of Frank and Michael comes the ability to offer new expertise in health care insolvency as clients navigate complex waters in today’s ever-changing environment and attempt to better address government and other third-party financial demands,” said Gabriel Imperato, managing partner of the firm’s Fort Lauderdale office. “This is an area of law that is seeing significant growth across the nation, so this transition comes at an especially critical time.”

Frank Terzo joins Broad and Cassel’s Health Law and Bankruptcy & Creditors’ Rights Practice Groups. He previously served as executive partner and chair of GrayRobinson’s bankruptcy practice group. While there, he was involved in a wide range of insolvency matters, including representation of corporate and consumer clients in complex workouts, bankruptcies, assignments for the benefit of creditors and receiverships. He also has substantial experience in both the prosecution and defense of all forms of complex bankruptcy litigation, including preference and fraudulent transfer proceedings and complex contested matters.

To continue reading, please click here.


Posted in Practice News | Tagged , ,

2017 Legislative Session Preview

By: McKenzie A. Livingston

The first two months of 2017 have seen quite a bit of activity in health law in Florida.

In February, the Eleventh U.S. Circuit Court of Appeals struck down a Florida law, known as the Gun Gag Law, which barred doctors from discussing guns with patients. Under the Gun Gag Law, which was blocked from taking effect shortly after it was passed, doctors could face fines of up to $10,000 and the possibility of losing their medical license for discussing gun ownership with patients. The Court found that the Gun Gag Law violates doctors’ First Amendment rights.  Governor Scott’s office is reviewing the Court’s decision and deciding whether to appeal to the U.S. Supreme Court.

With Florida’s legislative session commencing March 7th, a flurry of bills related to healthcare have been filed, debated and circulated in the State Capitol.

Legislators have proposed eliminating (HB 7), or at a minimum creating exemptions to (SB 676), the Certificate of Need (CON) regulatory process for hospitals, nursing homes, and hospice facilities.  The CON process requires hospitals, nursing homes and hospice facilities to obtain approval from the Agency for Health Care Administration (AHCA) before building new facilities or expanding.  AHCA determines whether there is a need in the community for the healthcare facility before permitting new facilities to be built or existing facilities to expand.  Proponents claim that eliminating, or allowing exemptions from, the CON process will increase competition, drive down the cost of health care and create jobs.  Opponents claim it will result in a glut of beds, create staffing shortages and negatively impact the quality of care provided to patients.

There is also discussion (HB 154) of revising Florida law governing ambulatory surgical centers, which currently bars overnight stays, to permit patients to remain at the centers for up to 24 hours.  The bill also introduces a new entity called a recovery care center, where patients could stay up to 72 hours after surgery.

Lawmakers are also discussing proposals (HB 161 and SB 240) to permit the use of direct primary care agreements between doctors and patients.  Direct primary care agreements typically involve patients or their employers making monthly payments to physicians or other health providers to cover routine primary-care services.  The bills would carve out such agreements from the purview of state insurance laws.

State legislators in both the Senate (SB 900) and House (PCB HHS 17-01) have also submitted proposals which would provide state workers with four levels of insurance options, wherein state workers could choose less coverage in their health insurance benefits and pocket some of the savings.  Proponents of the bill claim it provides state workers a variety of health insurance options.  Opponents voiced concern that individuals may be enticed to select less coverage in order to obtain the savings payments.

Two bills have been introduced to structure the implementation of Amendment 2, approved by last November, which legalizes medical marijuana for individuals with specific debilitating diseases or comparable debilitating conditions as determined by a licensed state physician.  Under existing law, medical marijuana businesses must function at every aspect of the process from growing to processing to dispensing. In order to open a dispensary, one must own a nursery.  One bill (SB 406) is built upon this pre-existing framework of licensing vertically integrated businesses, though it does permit a very gradual increase in the number of medical marijuana treatment centers permitted in the State.  The other bill (SB 614) seeks to completely revamp the way legalized medical marijuana is regulated.  It eliminates the cap on the number of medical marijuana treatment centers that are permitted to exist in the State.  It also does away with the vertically structured licensing by permitting companies to be licensed in four distinct areas – growing, processing, transporting or dispensing.  At least one additional bill is expected to be introduced by Florida’s House of Representatives.



Posted in McKenzie Livingston, Regulatory | Tagged , , , , , , , , , , , , , ,

Medical Cannabis – Myth, medicine, or malpractice?

By: Paul R. DeMuro, PhD and Dr. Jose Valdes, PharmD, BCPP

Medical cannabis or cannabinoids (or medical marijuana as some like to call it) is now a reality in Florida.  Although it can only be recommended for certain maladies and obtained in certain ways, those logistics do not necessarily affect some of the safety and key legal considerations of which those in the healthcare industry should be aware.

There are gaps in knowledge about cannabis, its efficacy , long term side effects, dosing, and optimal administration routes in part, because of the paucity of research in these areas.  Cannabis is still an FDA Schedule I drug, and thus not legal from a federal perspective which places unnecessary strain on researchers trying to determine the therapeutic value of cannabis.  Additionally, some clinicians may be wary of prescribing it because of potential federal ramifications.  Thus, a patient’s ability to locate a clinician who will recommend cannabis might be difficult even though there are nearly 400 clinicians who have completed the required continuing education course to be able to recommend its use.  As clinicians must weigh the therapeutic effects against the potential adverse health effects, generally they do not have the same type of guidance as with other prescription drugs.  How can clinicians be assured that the quantity, quality and type of cannabinoid products are consistently what they say they are?

Except in a few states, the dispensing of cannabis does not have to involve a pharmacist in the process. Thus, the same assurances of pharmacist oversight which might be available for other prescription drugs might not be assured. Complicating the lack of pharmacist intervention is the fact that there does not appear to be a consensus for safe and appropriate doses for various illnesses in clinical studies, or conclusive evidence that cannabinoids are even effective for some conditions. Furthermore, the lack of pharmacist involvement in the dispensing of cannabis places the responsibility of reviewing the patient’s medication profile and medical history for potential complications, interactions, and adverse effects solely on the clinician. This removes an important second check that pharmacists are equipped to provide, and gives the clinician less assurance of safe and appropriate utilization of cannabis by their patients

Many practitioners will be concerned about the potential professional liability consequences.  The traditional standards of the duty of care and breach of that duty should apply, but how will they be applied?   A physician patient relationship undoubtedly will be created, but how will the standard of care be determined, and the breach of that duty determined?  The latter can be a particularly thorny issue where cannabis use might cause addiction and/or respiratory problems, if inhaled. Additionally authorizing clinicians to recommend cannabis will not absolve them from rendering competent and informed medical care. Clinicians must remember that they may be recommending a non-FDA approved product that a large majority of their professional colleagues or medical associations do not fully support which may expose them to malpractice. This is especially so for clinicians who recommend its use for unproven, discredited, or unsubstantiated purposes.

For some specific symptoms, such as spasticity (seen in multiple sclerosis and amyotrophic lateral sclerosis), increased intraocular pressure (seen in glaucoma), pain and appetite stimulation (in cancer and HIV/AIDS respectively), cannabis is generally considered to be helpful. Could cannabis help wean someone off of opioids? Could it be ordered in place of opioids?  Can it improve the quality of care and be more cost-effective than alternative treatments, resulting in the potential for greater use in the context of Accountable Care Organizations (ACOs) and other models which are value-based purchasing in nature? All are possible, and require further research to conclude on these points. However for other specific indications such as epilepsy, post-traumatic stress disorder, Crohn’s disease, and Parkinson’s disease the jury is still out.

Many challenges and barriers are likely to be encountered as medical cannabis moves forward in Florida.  Will the research be truly evidence based medicine, given the challenges research faces because of cannabis being a Schedule I drug?  Will such research be supported and will it be standardized in some form?  Will the cannabis used in medical research be the same that is available to be ordered for patients? While we may be only at the tip of the iceberg in discovering what and how cannabis may be useful for and in what forms, there is still much to be learned. Until then, keeping abreast of the legal and medical data as it is published, is paramount.


Posted in Malpractice, Paul DeMuro | Tagged , , , , , , , , ,

Save the Date!

Broad and Cassel’s Third Annual Orlando Health Care Forum is scheduled for Friday, April 21. Please join us to explore “Compliance from the Top: Board Responsibility for Compliance Oversight.” Stay tuned for more details.

Click here to register.

Posted in Uncategorized