Tag Archives: florida

Medical Marijuana and the IRS

Marijuana holds a unique place in the legal system. On one hand, many states, including Florida, have legalized marijuana for medical use. Some states have even legalized marijuana for recreational use. Despite this, marijuana remains a federally controlled substance and is illegal under federal law. Through a series of federal legislation and executive orders, however, people and businesses complying with their state’s marijuana laws have little to fear from the federal government when it comes to the possession, use, and sale of marijuana.

One notable exception to this rule is taxes, as the Tenth Circuit Court of Appeals recently made clear. In 2017, the IRS began auditing Standing Akimbo, a Colorado medical marijuana dispensary. During this audit, Standing Akimbo refused to produce certain documents, which led to a lawsuit filed by the IRS. While the majority of the case revolves around Colorado record laws and the Fourth Amendment, there was one key holding every dispensary across the County should be aware of. In its opinion, the Court made clear that marijuana was still an illegal, controlled substance pursuant to federal law and, as such, deducting business expenses related to the sale of marijuana is an “unlawful activity.” The Court explained that “despite legally operating under Colorado law, the Taxpayers are subject to greater federal tax liability because of their federally unlawful activities, and any remedy [for this] must come from Congressional change to § 280E or 21 U.S.C. § 812(c) (Schedule I) rather than from the courts.” Standing Akimbo, LLC v. United States, 19-1049, 2020 WL 1684056, at *7 (10th Cir. Apr. 7, 2020).

As the “legal” use and sale of marijuana in Florida continues to grow, dispensaries need to clearly understand their rights and how federal and state laws intersect. If you operate a medical marijuana dispensary in Florida and have questions about your rights, you should contact an attorney at Smith & Associates for a free initial consultation.

New Law Allows Pharmacists to Diagnose and Treat Certain Medical Conditions

On March 11, 2020, Governor Ron DeSantis signed HB 389 into law. This law allows qualified pharmacists the ability to treat chronic illnesses and to test, diagnose, and treat certain minor, non-chronic illnesses.

Treatment of Chronic Illnesses

This new law creates Florida Statute § 465.1865 entitled “Collaborative Pharmacy Practice for Chronic Health Conditions.” This section sets forth the requirements for a pharmacist to treat certain chronic health conditions. Importantly, these chronic health conditions are limited to:

Arthritis;
Asthma;
Chronic obstructive pulmonary diseases;
Type 2 Diabetes;
Human immunodeficiency virus or acquired immune deficiency syndrome;
Obesity; and
Other chronic conditions that the Board of Pharmacy may allow by future rule making.

Fla. Stat. § 465.1865(1).

To be able to treat these chronic conditions, a pharmacist must enter into a “Collaborative Pharmacy Practice Agreement” with the patient’s licensed physician. This agreement must include:

The name of the patient(s) for whom a pharmacist may provide services;
The chronic health condition(s) to be managed;
The specific drugs to be managed;
The circumstances under which the pharmacist may order and evaluate laboratory or clinical tests;
The conditions upon which the pharmacist must notify the physician;
The beginning and end dates of the treatment; and
A statement that the agreement can be terminated at any time by either the pharmacist or the physician.

Fla. Stat. § 465.1865(3)(a).

Additionally, before a pharmacist can treat these chronic conditions, the pharmacists must be certified by the Board of Pharmacy. To obtain this certification, the pharmacists must:

Have an active pharmacy license;
Have a Doctor of Pharmacy or have completed five years as a licensed pharmacist;
Complete a 20-hour course on Collaborative Treatment of Chronic Health Conditions that is approved by the Board of Pharmacy;
Maintain at least $250,000 of professional liability insurance; and
Have an established system for keeping patient records.

Fla. Stat. § 465.1865(2).

As this law was recently passed, rulemaking has not yet begun. However, as the Board of Pharmacy promulgates rules on collaborative treatment of chronic illnesses, we will provide update with any new developments.

Treatment of Non-Chronic Health Conditions

Additionally, the new law created Florida Statute § 465.1895, which allows for the testing and treatment of minor, non-chronic health conditions by a pharmacist. Minor, non-chronic health conditions include:

Influenza;
Streptococcus;
Lice;
Certain skin conditions; and
Minor, uncomplicated infections.

Fla. Stat. § 465.1895(1)(a).

Much like the treatment of chronic conditions, a pharmacist who wishes to treat non-chronic, minor illnesses must do so under the supervision of a physician and pursuant to written protocol between the pharmacist and the physician. This protocol must contain:

The categories of patients the pharmacist s authorized to treat;
The physician’s instruction for obtaining relevant patient medical history;
The physician’s instructions for the treatment of the condition based on the patients age, symptoms, and test results; and
A process and schedule for the physician to review the pharmacist’s actions and for the pharmacist to notify the physician of his or her actions.

Fla. Stat. § 465.1895(5).

As rule making progresses, new requirements may be added to this list.

Finally, any pharmacist who wishes to treat minor, non-chronic health conditions must be certified by the Board of Pharmacy to do so. To obtain this certification, the pharmacist must, among other things:

Hold an active license to practice pharmacy in Florida;
Take a 20-hour board approved education course on assessing and treating minor, non-chronic health conditions;
Maintain at least $250,000 of liability coverage;
Upon request, furnish patient health care records to a health care practitioner designated by the patient; and
Maintain patient records for five years.

Fla. Stat. § 465.1895(2).

Conclusion

This new law takes effect on July 1, 2020. Right now, the Board of Pharmacy is in the beginning stages of developing rules to implement this new law. As these rules progress, we will provide any important updates.

If you are a pharmacist who would like to take advantage of this new law and have questions about how to obtain licensing, you should contact an attorney at Smith & Associates to discuss your options.

Government Must Look at Bidder’s Unique Approach When Evaluating Bids

Last week the GAO issued a recommendation in the Matter of: Alcazar Trades, Inc.; Sparkle Warner JV, LLC. The Government issued an RFP for a fixed-price contract, with a 1-year base period and four option years, to furnish custodial services for 23 buildings and 7 guard shacks at the Denver Federal Center. The award was to be made to the bidder whose proposal was the “most advantageous to the government,” considering price and the following non-price evaluation factors: management plan (30 percent of the non-price factors), past performance (30 percent), and experience (40 percent). Alcazar Trades, Inc. (“ATI”) submitted the bid with the lowest price. The government found that ATI’s bid was unrealistic such as to “put the government at risk if the Offeror tried to perform the services with inadequate funding.” ATI then filed this bid protest.

The GAO found that as a general matter “[p]rice realism need not necessarily be considered in evaluating proposals for the award of a fixed-price contract, because these contracts place the risk of loss upon the contractor rather than the government.” The GAO further held that “[w]here offerors take a similar approach to meeting the solicitation requirements, our Office has generally not objected to a price realism analysis that focuses on a comparison of an offeror’s price to the government estimate and the prices of other offerors… Our Office has recognized, however, that a price realism evaluation must consider the unique technical approaches proposed by each offeror.” ATI argued that its staffing approach was unique and was not comparable to the other bidders, as such, it was able to offer a much lower price. The GAO agreed and concluded that the government “unreasonably evaluated the realism of ATI’s low price, failing to account for ATI’s unique staffing approach.” It then recommended that the government reevaluate the proposals and reimburse ATI its attorney’s fees and costs.

If you believe that your bid response has been improperly evaluated, contact the experienced bid protest attorneys at Smith & Associates for a free consultation.

GAO’s Bid Protest Decision Breathes New Life Into Protester’s Bids

Last week, the GAO issued a decision in The Matter of Al Raha Group for Technical Services,Inc.; Logistics Management International, Inc. The Air Force issued an RFP for F-15 fighter jet transportation support services. In response, it received 7 proposals. These proposals would be evaluated based upon three factors: technical; past performance; and cost/price. All seven bidders received “Acceptable” scores with regards to the technical factor. Logistics Management International, Inc (“LMI”) and Al Raha Group for Technical Services, Inc. (“RGTS”) submitted the two lowest bids respectively with regards to price, with SupplyCore coming in third. However, both LMI and RGTS recieved a “Limited” score on the Past Performance Confidence factor. Due to this, the Air Force awarded the bid to SupplyCore and LMI and RGTS filed a bid protest.

The GAO held that the Air Force failed to evaluate SupplyCore’s past performance in accordance with RFP requirements. It further held that the Air Force failed to meaningfully consider available agency information regarding LMI’s past performance of similar requirements for the Air Force, and therefore sustained LMI’s bid protest. However, the GAO held that the Air Force did not unreasonably ignore or contradict RGTS’s CPARs, rely on adverse past performance information, or ignore relevant past performance information not yet captured in a final, formal CPAR.

Based upon these holdings, the GOA recommended that the Air Force reevaluate offerors’ past performance information and, based on that reevaluation, it recommended that the agency make a new source selection determination. Finally, it recommended that the agency reimburse the protesters their respective costs associated with filing and pursuing their protests, including reasonable attorneys’ fees.

If you believe that your bid has been improperly scored, contact the experienced bid protest attorneys at Smith & Associates for a free consultation.