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Federal Judge Says Colorado Board of Pharmacy Must Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.

The Health Law Firm’s attorneys routinely provide legal representation to nurses, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for nurses in Board of Nursing investigations and complaints, DORA investigations and complaints, and Department of Health (DOH) investigations and complaints. We defend in state and federal administrative hearings, investigations, and litigation. We also represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 and visit our website at www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2020-06-03T16:42:11-04:00July 1st, 2020|Categories: Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Emergency Order Allows Florida Pharmacists to Temporarily Order, Administer COVID-19 Tests

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 24, 2020, Florida Gov. Ron DeSantis announced he would expand the opportunities for people to obtain COVID-19 tests by allowing licensed pharmacists to order and administer them. For purposes of preparing for, responding to, and mitigating any effect of COVID-19, Emergency Order 20-006 was filed, suspending section 483.813, Florida Statutes. You can click on the link to read the entire Order.

According to the Order, it was necessary to waive certain statutes and rules of the Florida DOH in order to effectively respond to the emergency caused by COVID-19. Section 483.813, Florida Statutes, requires a pharmacist to be separately licensed to perform a clinical laboratory test. Additionally, section 465.003(13), Florida Statutes, has provisions that prohibit a pharmacist from ordering, administering, or reporting the results of COVID-19 tests, including serology tests, authorized by the United States Food & Drug Administration (FDA). The Emergency Order temporarily sidesteps the law to allow pharmacists to perform these functions.

This suspension of the applicable law applies until the expiration of Executive Order 20-52.

The full version of the Emergency Order may be found on the Florida Board of Pharmacy’s website here as well as on our website here.

It’s important to remember that as with all new guidance and policy changes, it is essential to understand how these changes fit into the existing regulatory frameworks that govern the health care industry.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide deposition coverage to pharmacists, pharmacies, and other health professionals being deposed in criminal cases, negligence cases, civil cases, or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants, and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Gross, J. Samantha. “Florida pharmacists to be allowed to issue COVID-19 tests, DeSantis says.” Miami Herald. (April 24, 2020). Web.

“Pharmacists Authorized to Order and Administer COVID-19 Testing.” The National Law Review. (April 20,2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Florida Board of Pharmacy defense representation, legal defense for pharmacists, pharmacist defense lawyer, Board of Pharmacy defense lawyer, Board of Pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, Board of Pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney, DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Insurer Faces Possible Lawsuits Over Failure to Pay Pandemic Business Interruption Claims

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On April 14, 2020, several companies announced they are considering a class action lawsuit against Hiscox Insurance over its failure to pay business interruption claims relating to the coronavirus lockdown. Hiscox, sold policies before COVID-19 hit. The policies allegedly stated that they would cover claims related to businesses being forced to shut owing to a notifiable disease. Business owners have reportedly filed claims with Hiscox and other commercial insurance companies, only to be told that their policies don’t cover the losses related to the pandemic.

Pay Attention to the Policy Wording.

The company’s policy wording says business interruption claims can be made if a public authority makes the business premises unusable due to “an occurrence of any human infectious or human contagion disease.”

Hiscox claims the policy’s coverage would only be triggered by “certain specific events at, or local to, the premises.” The insurer said its policies were not designed to cover the extraordinary circumstances caused by the pandemic. In a statement, the company said, “We understand that these are incredibly difficult times for businesses affected by COVID-19. At Hiscox, we strive to pay claims that are covered by the policies fairly and quickly. However, general business interruption policies across the industry, including Hiscox’s, were not designed to cover these extraordinary circumstances. Like terrorism and flood, which have government-backed insurance schemes, pandemics like coronavirus are simply too large and too systemic for private insurers to cover,” it added.

Business Interruption.

Business interruption insurance usually provides protection against the closure of business because of damage to property. Multiple “non-damage” extensions can be added to standard policies, including those for denial of access because of communicable disease. A communicable disease extension or addendum will typically cover losses arising from closure resulting from an outbreak of a virus or bacteria on-site or nearby.

Many policies’ word also includes a defined list of diseases covered under the terms of the policy, which range from the SARS virus to smallpox. Others are less specific, offering coverage for any “notifiable disease” outbreak required by law to be reported to authorities. Additionally, sometimes communicable disease policy addendums contain exclusions, which state that an outbreak must have occurred on the business premises or within a defined vicinity.

The Problem With Policies?

The difficulty is that in the majority of cases, these policies cite “direct physical loss or damage” as a requirement to be triggered. Unfortunately, a quarantine, travel ban, shelter-in-place orders, or pandemic might make it impossible for a business to keep its doors open, but unfortunately may not constitute obvious “physical damage.” So, if the wording fits, as far as the insurance company is concerned, it’s not their problem!

Hiscox denied the claims made against them and responded that the clause was designed to cover losses “solely and directly” from restrictions imposed by a public authority. It would not apply in this case because losses would have still occurred even if businesses had not been closed, because of the government-imposed lockdown.

Legal Issues For Insurance Policies.

There are several important points to remember when dealing with insurance policies and claims made to an insurer.

First, insurance is governed by state law, so interpretations and policy coverage requirements may differ from state to state. Always check your state’s insurance laws and the cases that interpret them to see if the issue is governed by them.

Second, your insurance policy is a contract between you and the insurance company. Read the contract and see what it states. If it is vague or there is a doubt after you read it, you may have a good case. See the next step below.

Third, the insurance company wrote the policy. The insurance company had complete control over the wording of the policy. It was up to the insurance company to be definite and specific in what was covered or not covered. If there is doubt in the coverage that is provided in the policy, the courts will usually interpret this against the insurance company so as to provide coverage to the insured for the loss.

Fourth, when there is a problem with an insurance claim or a denied claim, immediately retain the services of one of the many attorneys who are experienced in suing insurance companies. These attorneys usually know what they are doing and will not charge you unless they obtain a recovery for you.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Croucher, Martin. “Insurers Face Legal Tests Over Rejected Pandemic Claims.” Law360. (April 17, 2020). Web.

Croucher, Martin. “Hiscox Could Face Class Action Over COVID-19 Response” Law360. (April 14, 2020). Web.

Cox, Josie. “Coronavirus has exposed Britain’s insurance industry as a shambles.” The Guardian. (March 18, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Dermatologist Pays $1.74 Million Settlement in FCA Suit For Inflated Medicare Claims in Florida

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 13, 2020, a Florida dermatologist and cosmetic surgeon agreed to pay $1.74 million to resolve allegations that he violated the False Claims Act (FCA). United States Attorney Maria Chapa Lopez announced that Dr. Thi Thien Nguyen Tran and Village Dermatology and Cosmetic Surgery, L.L.C. agreed to settle the case involving allegedly inflated Medicare claims. The settlement concludes the qui tam (whistleblowers) civil lawsuit originally filed in the United States District Court for the Middle District of Florida.

Alleged Inflated Claims to Medicare.

According to the settlement agreement, from 2011 through 2016, Dr. Tran and Village Dermatology billed for 14,000 tissue transfers, which should have been billed as lower-level wound repairs. These submissions allegedly resulted in inflated claims that Medicare paid at rates higher than it should have paid. The exaggerated claims that were submitted to Medicare were for wound repairs related to Mohs surgery, a common, in-office procedure for dermatologists.

Qui Tam, Whistleblower Provisions.

The suit was originally filed under the qui tam, or whistleblower, provisions of the False Claims Act. This law, originally enacted during the Civil War, allows a private citizen to sue on behalf of the United States for false claims the government paid; if successful in recovering money, the whistleblower shares in the recovery. The Act also allows the United States to intervene and prosecute the action. According to the DOJ, the whistleblowers in this suit will receive over $305,000 of the proceeds from the settlement it made with Dr. Tran and Village Dermatology.

This case just shows that even physicians can and should bring such claims and be rewarded for their whistleblowing activities.

To read the press release issued by the DOJ, click here.

Read about a recent case involving FCA allegations by reading one of my prior blogs here.

False Claims Act Cases Can Often be Settled Early and Greater Penalties, Including Prison, Avoided.

This case shows that getting an experienced attorney involved early in the proceedings can lead to a monetary settlement on a case for a much lower price than if it were unnecessarily and aggressively defended. False Claims Act cases carry with them the threat of a possible criminal prosecution which can result in years in prison for a physician. They could also result in civil monetary penalties in the millions of dollars. This is because the government is allowed to pursue treble dames, plus $11,500 (adjusted for inflation), plus attorneys fee and costs, for each claim. Thus, if a physician has only 100 possibly false claims that Medicare paid for $100 each, this could result in over $1,150,300.00, plus attorney fees and costs for them. 1,000 false claims, over $11 million in possible penalties.

If the physician can retain the services of an experienced health lawyer who can negotiate down the amount sought by the government millions of dollars in penalties, legal fees and lost time from medical practice may be achieved. On the other hand, in the right case, if a physician is not guilty of any false billings, these cases can be identified early and a cohesive, organized defense planned early.

Contact Health Law Attorneys Experienced with Qui Tam, Whistleblower Cases, and False Claims Act Violations.

Attorneys with The Health Law Firm represent dermatologists and other physicians, nurse practitioners and other nurses, and health professionals who need to defend a False Claims Act case, or who desire to file a False Claims Act (whistleblower or qui tam) case. However, the attorneys of The Health Law Firm also defend physicians, medical groups, and health facilities who have been sued in False Claims Act (whistleblower or qui tam) cases or have had administrative or civil complaints filed against them to recover civil monetary penalties. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com

Sources:

Pederson, Joe. “Villages doctor agrees to pay $1.7 million to settle False Claims Act Liability after inflating Medicare claims.” Orlando Sentinel. (March 13, 2020). Web.

“Villages doctor agrees to pay $1.7 million to settle False Claims Act after inflating Medicare claims.” MSN News. (March 16, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., a Florida professional service corporation, since 1999, and is also a registered service mark.
Copyright © 2020 The Health Law Firm. All rights reserved

By |2020-05-07T12:54:14-04:00June 18th, 2020|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Insurer Faces Lawsuit For Failing to Pay Pandemic Business Claims

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On April 14, 2020, several companies announced they are considering a class action lawsuit against Hiscox Insurance over its failure to pay business interruption claims relating to the coronavirus lockdown. Hiscox, sold policies before COVID-19 hit. The policies allegedly stated that they would cover claims related to businesses being forced to shut owing to a notifiable disease. Business owners have reportedly filed claims with Hiscox and other commercial insurance companies, only to be told that their policies don’t cover the losses related to the pandemic.

Pay Attention to the Policy Wording.

The company’s policy wording says business interruption claims can be made if a public authority makes the business premises unusable due to “an occurrence of any human infectious or human contagion disease.”

Hiscox claims the policy’s coverage would only be triggered by “certain specific events at, or local to, the premises.” The insurer said its policies were not designed to cover the extraordinary circumstances caused by the pandemic. In a statement, the company said, “We understand that these are incredibly difficult times for businesses affected by COVID-19. At Hiscox, we strive to pay claims that are covered by the policies fairly and quickly. However, general business interruption policies across the industry, including Hiscox’s, were not designed to cover these extraordinary circumstances. Like terrorism and flood, which have government-backed insurance schemes, pandemics like coronavirus are simply too large and too systemic for private insurers to cover,” it added.

Business Interruption Insurance.

Business interruption insurance usually provides protection against the closure of business because of damage to property. Multiple “non-damage” extensions can be added to standard policies, including those for denial of access because of communicable disease. A communicable disease extension or addendum will typically cover losses arising from closure resulting from an outbreak of a virus or bacteria on-site or nearby.

Many policies’ word also includes a defined list of diseases covered under the terms of the policy, which range from the SARS virus to smallpox. Others are less specific, offering coverage for any “notifiable disease” outbreak required by law to be reported to authorities. Additionally, sometimes communicable disease policy addendums contain exclusions, which state that an outbreak must have occurred on the business premises or within a defined vicinity.

The Problem With Policies?

The difficulty is that in the majority of cases, these policies cite “direct physical loss or damage” as a requirement to be triggered. Unfortunately, a quarantine, travel ban, shelter-in-place orders, or pandemic might make it impossible for a business to keep its doors open, but unfortunately may not constitute obvious “physical damage.” So, if the wording fits, as far as the insurance company is concerned, it’s not their problem!

Hiscox denied the claims made against them and responded that the clause was designed to cover losses “solely and directly” from restrictions imposed by a public authority. It would not apply in this case because losses would have still occurred even if businesses had not been closed, because of the government-imposed lockdown.

Legal Issues For Insurance Policies.

There are several important points to remember when dealing with insurance policies and claims made to an insurer.

First, insurance is governed by state law, so interpretations and policy coverage requirements may differ from state to state. Always check your state’s insurance laws and the cases that interpret them to see if the issue is governed by them.

Second, your insurance policy is a contract between you and the insurance company. Read the contract and see what it states. If it is vague or there is a doubt after you read it, you may have a good case. See the next step below.

Third, the insurance company wrote the policy. The insurance company had complete control over the wording of the policy. It was up to the insurance company to be definite and specific in what was covered or not covered. If there is doubt in the coverage that is provided in the policy, the courts will usually interpret this against the insurance company so as to provide coverage to the insured for the loss.

Fourth, when there is a problem with an insurance claim or a denied claim, immediately retain the services of one of the many attorneys who are experienced in suing insurance companies. These attorneys usually know what they are doing and will not charge you unless they obtain a recovery for you.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at https://bit.ly/2MJkvQi

Sources:

Croucher, Martin. “Insurers Face Legal Tests Over Rejected Pandemic Claims.” Law360. (April 17, 2020). Web.

Croucher, Martin. “Hiscox Could Face Class Action Over COVID-19 Response” Law360. (April 14, 2020). Web.

Cox, Josie. “Coronavirus has exposed Britain’s insurance industry as a shambles.” The Guardian. (March 18, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. https://bit.ly/2MJkvQi  The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

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CO Board of Pharmacy Ordered to Give DEA Patient Data

Attorney Carole C. SchrieferBy Carole C. Schriefer, J.D.
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Audits and Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy & Data.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide legal representation to pharmacists, pharmacies, physicians and other health providers. We defend in state and federal administrative hearings, investigations, and litigation. We represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

About the Authors: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2020-06-03T14:53:03-04:00June 10th, 2020|Categories: Colorado Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Insurer Faces Possible Lawsuits Over Failure to Pay Pandemic Business Interruption Claims

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On April 14, 2020, several companies announced they are considering a class action lawsuit against Hiscox Insurance over its failure to pay business interruption claims relating to the coronavirus lockdown. Hiscox, sold policies before COVID-19 hit. The policies allegedly stated that they would cover claims related to businesses being forced to shut owing to a notifiable disease. Business owners have reportedly filed claims with Hiscox and other commercial insurance companies, only to be told that their policies don’t cover the losses related to the pandemic.

Pay Attention to the Policy Wording.

The company’s policy wording says business interruption claims can be made if a public authority makes the business premises unusable due to “an occurrence of any human infectious or human contagion disease.”

Hiscox claims the policy’s coverage would only be triggered by “certain specific events at, or local to, the premises.” The insurer said its policies were not designed to cover the extraordinary circumstances caused by the pandemic. In a statement, the company said, “We understand that these are incredibly difficult times for businesses affected by COVID-19. At Hiscox, we strive to pay claims that are covered by the policies fairly and quickly. However, general business interruption policies across the industry, including Hiscox’s, were not designed to cover these extraordinary circumstances. Like terrorism and flood, which have government-backed insurance schemes, pandemics like coronavirus are simply too large and too systemic for private insurers to cover,” it added.

Business Interruption.

Business interruption insurance usually provides protection against the closure of business because of damage to property. Multiple “non-damage” extensions can be added to standard policies, including those for denial of access because of communicable disease. A communicable disease extension or addendum will typically cover losses arising from closure resulting from an outbreak of a virus or bacteria on-site or nearby.

Many policies’ word also includes a defined list of diseases covered under the terms of the policy, which range from the SARS virus to smallpox. Others are less specific, offering coverage for any “notifiable disease” outbreak required by law to be reported to authorities. Additionally, sometimes communicable disease policy addendums contain exclusions, which state that an outbreak must have occurred on the business premises or within a defined vicinity.

The Problem With Policies?

The difficulty is that in the majority of cases, these policies cite “direct physical loss or damage” as a requirement to be triggered. Unfortunately, a quarantine, travel ban, shelter-in-place orders, or pandemic might make it impossible for a business to keep its doors open, but unfortunately may not constitute obvious “physical damage.” So, if the wording fits, as far as the insurance company is concerned, it’s not their problem!

Hiscox denied the claims made against them and responded that the clause was designed to cover losses “solely and directly” from restrictions imposed by a public authority. It would not apply in this case because losses would have still occurred even if businesses had not been closed, because of the government-imposed lockdown.

Legal Issues For Insurance Policies.

There are several important points to remember when dealing with insurance policies and claims made to an insurer.

First, insurance is governed by state law, so interpretations and policy coverage requirements may differ from state to state. Always check your state’s insurance laws and the cases that interpret them to see if the issue is governed by them.

Second, your insurance policy is a contract between you and the insurance company. Read the contract and see what it states. If it is vague or there is a doubt after you read it, you may have a good case. See the next step below.

Third, the insurance company wrote the policy. The insurance company had complete control over the wording of the policy. It was up to the insurance company to be definite and specific in what was covered or not covered. If there is doubt in the coverage that is provided in the policy, the courts will usually interpret this against the insurance company so as to provide coverage to the insured for the loss.

Fourth, when there is a problem with an insurance claim or a denied claim, immediately retain the services of one of the many attorneys who are experienced in suing insurance companies. These attorneys usually know what they are doing and will not charge you unless they obtain a recovery for you.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Croucher, Martin. “Insurers Face Legal Tests Over Rejected Pandemic Claims.” Law360. (April 17, 2020). Web.

Croucher, Martin. “Hiscox Could Face Class Action Over COVID-19 Response” Law360. (April 14, 2020). Web.

Cox, Josie. “Coronavirus has exposed Britain’s insurance industry as a shambles.” The Guardian. (March 18, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Emergency Order Allows Florida Pharmacists to Order and Administer COVID-19 Tests

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 24, 2020, Florida Gov. Ron DeSantis announced he would expand the opportunities for people to obtain COVID-19 tests by allowing licensed pharmacists to order and administer them. For purposes of preparing for, responding to, and mitigating any effect of COVID-19, Emergency Order 20-006 was filed, suspending section 483.813, Florida Statutes. You can click on the link to read the entire Order.

According to the Order, it was necessary to waive certain statutes and rules of the Florida DOH in order to effectively respond to the emergency caused by COVID-19. Section 483.813, Florida Statutes, requires a pharmacist to be separately licensed to perform a clinical laboratory test. Additionally, section 465.003(13), Florida Statutes, has provisions that prohibit a pharmacist from ordering, administering, or reporting the results of COVID-19 tests, including serology tests, authorized by the United States Food & Drug Administration (FDA). The Emergency Order temporarily sidesteps the law to allow pharmacists to perform these functions.

This suspension of the applicable law applies until the expiration of Executive Order 20-52.

The full version of the Emergency Order may be found on the Florida Board of Pharmacy’s website here as well as on our website here.

It’s important to remember that as with all new guidance and policy changes, it is essential to understand how these changes fit into the existing regulatory frameworks that govern the health care industry.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide deposition coverage to pharmacists, pharmacies, and other health professionals being deposed in criminal cases, negligence cases, civil cases, or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants, and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Gross, J. Samantha. “Florida pharmacists to be allowed to issue COVID-19 tests, DeSantis says.” Miami Herald. (April 24, 2020). Web.

“Pharmacists Authorized to Order and Administer COVID-19 Testing.” The National Law Review. (April 20,2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Florida Board of Pharmacy defense representation, legal defense for pharmacists, pharmacist defense lawyer, Board of Pharmacy defense lawyer, Board of Pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, Board of Pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney, DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Colorado Board of Pharmacy Ordered to Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide legal representation to pharmacists, pharmacies, physicians and other health providers. We defend in state and federal administrative hearings, investigations, and litigation. We represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer, DORA defense attorney, Department of Health defense attorney, Florida Board of Pharmacy defense legal representation, legal defense for pharmacists, pharmacist defense lawyer, board of pharmacy defense lawyer, board of pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, board of pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2020-06-03T14:43:22-04:00June 3rd, 2020|Categories: Pharmacy Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

New Campus Sexual Assault Rules Strengthen Rights of the Accused Student in School Hearings

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On May 6, 2020, the U.S. Education Department finalized a new policy that will reshape the way schools and universities respond to sexual misconduct complaints. Education Secretary Betsy DeVos issued rules to strengthen the rights of accused students, reduce legal liabilities, and narrow the scope of cases colleges are required to investigate. These investigations and hearing are often called “Title IX investigations and hearings.”

The agency started the overhaul in 2018 after revoking rules from the Obama administration that it says adopted a “failed system” that pressured schools to deny the rights of alleged perpetrators.

A New Sexual-Assault Policy on Campuses.

The policy changes narrow the definition of sexual harassment and require schools and universities to investigate claims only if they’re reported to certain officials. Colleges can be held accountable for mishandling complaints only if they acted with “deliberate indifference.” One of the more hotly contested changes is that students will be permitted to question one another during live hearings.

DeVos also said for the first time that dating violence, stalking, and domestic violence also must be addressed. and she added new language ordering schools to provide special support for victims regardless of whether they file a formal complaint.

Under the new rules, the definition of sexual harassment is narrowed to include “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive” that it denies a person access to a school’s education programs or activity.

The Obama administration used a much broader definition that included any “unwelcome conduct of a sexual nature,” including “sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature.”

For colleges, the new policy narrows the type of complaints they will be required to investigate. In sharp contrast to the Obama Administration, it orders colleges to pursue cases only if they’re reported to certain campus officials. Additionally, it says schools can choose whether to handle cases in off-campus areas that are outside their “programs or activities.”

Opponents of the law said the Obama rules forced schools to stop sweeping the issue under the rug and survivors will get the message loud and clear that there is no point in reporting assault. In contrast, those supporting accused students said past laws tipped the scales in favor of accusers and caused unfair, hasty actions against the accused.

The changes take effect on August 14, 2020.

Unfortunately, these types of cases are not uncommon on college campuses, which is why this is such a hot button topic. Click here to read my recent blog on a similar case.

It’s About Time.

We have been involved in a number of cases brought alleging sexual harassment, sexual assault, absence of consent, date rape, and other similar allegations, under Title IX. Unfortunately, the deck has been always stacked completely in favor of the person making such accusations and the accused student has been given almost no due process of law rights. It is long past time for a change to these one-sided rules.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents, and Fellows.

The Health Law Firm routinely represents students, including medical students, dental students, nursing students, pharmacy students, resident physicians, and fellows, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

“New campus sexual assault rules give accused students more rights, Betsy DeVos says.” CBS NEWS. (May 7, 2020). Web.

Binkley, Collin. “New campus sexual assault rules bolster rights of accused.” Associated Press (AP). (May 6, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

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