As has been reported in the press, the Legislature recently passed CS/CS HB 239 -- a comprehensive bill that amends the Florida Optometric Practice Act in several respects. See Ch. 2013-26, Laws of Fla. Up to now, most of the press reports have focused on the fact that the new law extends limited oral prescribing privileges to optometrists. However, you need to know that there are other aspects of the legislation that directly impact ophthalmologists, especially ophthalmologists who "co-manage" surgical patients with optometrists. The new law takes effect on July 1, 2013, so it is important for you and your business manager to have a clear understanding of the legislation to ensure compliance.

Impact on Co-Management

The new law does not prohibit co-management. However, it does impose new requirements on optometrists and ophthalmologists who co-manage patients. For example, as of July 1, 2013:

• Co-management must be conducted pursuant to a written "patient-specific" transfer of care agreement wherein the operating ophthalmologist ( the surgeon ) must evaluate and confirm that it is not "medically necessary" for the surgeon to provide post-operative care to the patient, and that it is "clinically appropriate" for the optometrist to provide such post operative care.
• The patient must be informed in writing that he or she has the right to be seen by the surgeon during the entire post-operative period.
• The patient must be informed of the fees, if any, to be charged by the optometrist and the surgeon.
• The patient must be fully informed of, and consent in writing to, the co-management relationship.

In addition, the new law imposes billing transparency requirements for postoperative care provided in a co-managed setting. Section 6 requires that the surgeon and the optometrist provide the patient "with an accurate and comprehensive itemized statement of the specific postoperative services that the physician performing the surgery and the licensed practitioner [the optometrist] render, along with the charge for each service." See § 6, Ch. 2013-26 (emphasis added.)

In establishing the appropriate billing protocol for co-managed services, it is also important to keep in mind that Florida has stringent anti-kickback and patient brokering laws which carry fines and criminal penalties. See § 817.505, Fla. Stat. (making it unlawful for any person to offer, pay, solicit, or receive any bonus, rebate, kickback or bribe or engage in any split-fee arrangement to induce or in return for the referral of patients or patronage from a healthcare provider or healthcare facility); see also, § 456.054, Fla. Stat. (making it unlawful for healthcare providers to engage in patient broking by offering, paying, soliciting, or receiving a kickback, directly or indirectly, overtly or covertly, in cash or in kind, referring or soliciting patients). Aiding, abetting, advising or otherwise participating in the prohibited conduct is also illegal. See § 817.505 (1) (d), Fla. Stat. In order to avoid the appearance of a payment for referral, and to ensure compliance with the "accurate and comprehensive itemized statement" requirements under Section 6 of the new law, it would be prudent for the surgeon and the optometrist each to bill and collect for their own respective services, rather than the surgeon billing and collecting the total fee and then "splitting the fee" with the co-managing optometrist.

Finally, because ophthalmologists are subject to discipline by the Florida Board of Medicine, these new co-management requirements should be read in conjunction Board's Surgical Care Rule - Rule 64B8-9.007. This Rule, which has been upheld by the courts, expressly governs an ophthalmologist's delegation of post-operative care to an optometrist in a co-management setting. Among other things, the Rule mandates that "the management of post-surgical care is the responsibility of the operating surgeon". In other words, the patient's recovery from the surgery is the responsibility of the operating surgeon. The Rule permits the surgeon to delegate certain post-operative responsibilities to an optometrist but only where the optometrist is "supervised". Although the Rule does not require "direct on-site supervision" the surgeon still must oversee the postoperative care provided to his or her patient.

Of course, each ophthalmology practice is unique. Consequently, you and your business manager need to consult with your attorney to ensure that your co-management practices and billing protocols comply with these requirements. Meanwhile, if you have questions regarding the new law please contact the FSO's General Counsel at:

D. Bruce May, Jr.
Holland & Knight
Partner
315 South Calhoun Street
Suite 600
Tallahassee FL 32301
Phone 850.425.5607 | Fax 850.224.8832
bruce.may@hklaw.com | www.hklaw.com