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Florida Appeals Court Says Medical Marijuana Statute Unconstitutional

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

On July 9, 2019, a Florida appellate court ruled that the Florida Legislature’s approach to regulating medical marijuana is unconstitutional. If the ruling stands, it would require state health officials to begin registering medical-marijuana firms to do business and lift existing caps on how many medical marijuana treatment centers can operate in Florida.

Changes to Florida’s Medical Marijuana Legislation.

The First District Court of Appeal said on July 9, 2019, that the Florida Legislature’s law conflicts with the amendment to the Florida Constitution, specifically, the portion that defines a medical marijuana treatment center or MMTC. Florida’s current amendment requires MMTC’s to grow, process and distribute cannabis and all related products.

The Florida Court of Appeal ruled that this created an “oligopoly” or a vertically integrated business model. By requiring treatment centers to also produce and distribute their products, the state has created a system that favors large businesses. The state law requires business entities desiring to participate in the retailing of medical marijuana to “conform to a more restricted definition” than what is set forth in the amendment, the majority said.

The court found “it is in the public interest” to require health officials to register medical marijuana operators “without applying the unconstitutional statutory provisions.” But that finding “does not support requiring the department to immediately begin registering” medical marijuana operators at this stage of the proceedings, the majority decided.

Click here to read the court’s opinion in full.

To read one of my prior blogs on the status of medical marijuana in Florida, click here.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

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

Sources:

Kam, Dara. “Medical marijuana: Florida law creates ‘oligopoly’ for pot businesses, court decides.” Orlando Sentinel. (July 10, 2019). Web.

Simpson, Dave. “Fla. Medical Marijuana Statute Deemed Unconstitutional.” Law360. (July 9, 2019). Web.

Gainey, Blaise. “Florida Courts Rule Medical Marijuana Scheme Unconstitutional. What’s Next?” WUSF. (July 11, 2019). 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, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Florida medical marijuana legislation, medical marijuana representation, medical marijuana regulation attorney, medical marijuana lawyer, legal representation for medical marijuana issues, health care business application attorney, Florida marijuana law attorney, representation for marijuana growers, representation for marijuana distributors, defense attorney for marijuana growers, defense attorney for marijuana distributors, defense lawyer for medical marijuana, decriminalization of marijuana in Florida, health law defense attorney, Florida medical cannabis representation, medical cannabis lawyer, cannabis defense lawyer, medical marijuana defense attorney, health lawyers for marijuana distributors, legal counsel for marijuana growers and distributors, medical marijuana laws, medical marijuana legalization, recreational marijuana laws and regulations, legal representation for recreational marijuana in a business, legal counsel for marijuana law, legal representation for marijuana criminalization, legal representation for marijuana regulations, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-07-15T21:56:27+00:00July 15th, 2019|Marijuana Law Blog|0 Comments

Irregular Behavior and Disruptive Physicians: Nobody Likes a Nuisance

George Indest

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

Identifying and eliminating disruptive physicians has become a top concern for many hospitals and healthcare systems. Disruptive physicians hinder the safe and orderly operation of a healthcare facility and are considered a threat to the safety of patients. Disruptive behavior can impact staff morale and can increase the risk of liability to all employers.

Consequences of Disruptive Behavior.

Disruptive behavior from a physician can lead to dire consequences for both the physician and his or her employer. Lawsuits and liabilities, such as those in the New York case discussed above, can detract from a safe, cooperative, and professional healthcare environment.

Disruptive behavior can negatively affect the quality of patient care. Hospitals claim that this happens because of conduct that:

  • Disrupts or impedes the operations of the hospital;
  • Adversely affects the ability of others on the healthcare team to do their jobs;
  • Creates an unprofessional or hostile work environment for hospital employees;
  • Interferes with coworkers’ ability to practice competently;
  • Prevents effective communications among healthcare providers and staff;
  • Disrupts the continuity of care a patient receives; and
  • Adversely affect the community’s confidence in the hospital’s ability to provide quality patient care.

Being accused of being a disruptive physician may lead to adverse action against clinical privileges, action to drop the physician from insurance panels, consequential action by the state medical board or licensing authority, loss of specialty certification, termination of employment contracts and other various consequences.

What Conduct May Cause One to be Labeled a Disruptive Physician?

A hospital’s creed, ethical statement, or code of conduct, as well as Joint Commission Standards, and medical staff bylaws can define what constitutes disruptive behavior. Case reports, hospital policies and actual cases in which we have defended physicians demonstrate the types of acts that can be used to label a person as “disruptive.” Disruptive behavior includes, but is not limited to:

    • Verbal attacks that are personal, irrelevant to hospital operations, or exceed the bounds of professional conduct;
    • Shouting, yelling, or the use of profanity;
    • Verbally demeaning, rude or insulting conduct, including exhibiting signs of disdain or disgust;
    • Inappropriate physical conduct, such as pushing, shoving, grabbing, hitting, making obscene gestures, or throwing objects;
    • Inappropriate comments or illustrations made in patient medical records or other official documents, impugning the quality of care in hospital facilities, or attacking particular medical staff members, personnel, or policies;
    • Belittling remarks about the patient care provided by the hospital or any healthcare provider in the presence or vicinity of patients or their families;
    • Non-constructive criticism that is addressed to the recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence;
    • Refusal to accept, or disparaging or disgruntled acceptance of, medical staff assignments;
    • Inappropriately noisy or loud behavior in patient areas;
    • Making sexual or racial jokes;
    • Physically touching another professional, nurse or staff member, especially those of the opposite sex;
    • Making sexually suggestive remarks;
    • Commenting on another person’s body parts;
    • Threatening violence to another;
    • Throwing surgical equipment, medical supplies, charts, or anything else at or around anyone else; or Other disruptive, abusive, or unprofessional behavior.

I previously wrote a blog detailing the types of conduct considered disruptive, as well as the consequences associated with disruptive behavior and how you as a physician can avoid such pitfalls. To read part one of the blog series, click here.

 Proactively Educate Yourself.

It’s wise to review your hospital’s or institution’s policies on disruptive behavior. Arming yourself with the knowledge necessary to avoid such accusations is imperative in protecting your reputation and career.

No one lives in a glass house, but pretend you do. Someone can always observe your actions in the office or hospital. Once you have been labeled a disruptive physician, others may be close, at times, scrutinizing you for anything you may do wrong. You will make yourself a target for possible false allegations and accusations. The healthcare industry is a demanding and stressful field. It’s understandable that potential outbursts can occur; control yourself and don’t let them.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Source:

Burger, Jim. “Doc Threatens Physician’s Assistant During Open Heart Surgery: I’m Going to Put Your Through the Wall.” Outpatient Surgery. (July 14, 2014). 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“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 © 2019 The Health Law Firm. All rights reserved.

 

By |2019-06-14T01:23:36+00:00July 15th, 2019|Medical Education Law Blog|0 Comments

Nurses: Helpful Tips On Deposition Preparation

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

With the number of healthcare-related lawsuits on the rise, at some time in your career, you will most likely receive a subpoena requiring you to give an oral statement at a deposition. Having your deposition taken can be a stressful or even scary experience.

Following the simple steps we have set forth in this blog, you can make your deposition experience less stressful and hopefully relieve your feelings of anxiety.

Before the Deposition.

1. Be Prepared. You should prepare yourself for your deposition by familiarizing yourself with the chart or other medical records at issue in the lawsuit unless your attorney instructs you otherwise. You should be prepared to answer general knowledge questions regarding the issues involved in the lawsuit. The examining attorney does not expect an in-depth medical response; however, using some medical terminology may add to your credibility as a professional. Again, it is imperative that you realize your role in the case prior to deposition in order to assist in your preparation. If you have used certain medical terms in your nurse’s notes or medical record be sure you know exactly what they mean. If you used an abbreviation, be sure you know what it means.

2. Contact Your Attorney and Demand a Preparation Meeting. If you work in a hospital, you can probably expect the hospital’s attorney to conduct a predeposition conference to familiarize you with the plaintiff’s theory of the case when a hospital is being sued as an employer. Keep in mind that this attorney is not your attorney, but is your employer’s attorney; therefore, you may wish to retain a board certified healthcare attorney or a litigation attorney to be “on your side” for the deposition. If you are not contacted several weeks prior to your deposition regarding preparation for it, call your attorney and demand an appointment no later than one week prior to the deposition. This will give you time to meet with the attorney, learn about the issues involved in the suit, learn more about your role in the lawsuit, time to reschedule the meeting or have a follow-up meeting and time to relax before your deposition. Ask your attorney if he or she has a videotape of other depositions (from a different case) or a training videotape for you to watch. A training videotape can be particularly useful if you have never been deposed before. If your attorney does not conduct a pre-deposition conference with you, you are not receiving proper legal representation. Ask for a new attorney who has the time to properly prepare you for your deposition.

3. Ask If You Can Sit in on Other Depositions Before Yours. Although this may not be permitted in some cases, in many cases it will be. Consult with your attorney.

4. Do Not Discuss the Case With Others. Never discuss the case with others, unless your attorney is present or advises you it is ok to do this. If anyone tries to talk to you about the case, do not. If anyone asks you questions about the case, immediately advise them you have an attorney and that person should speak with your attorney.

5. Visit the Location of the Deposition. Unless the deposition will be held in your hospital or office, drive to the location where it will be held ahead of time and check out the parking situation. If you do this, you will not be rushed or late on the day of the deposition.

6. Pick Out Your Deposition Clothes. Pick out and prepare your deposition clothes prior to the deposition.

7. Obtain and Review Your Employer’s Medical Abbreviations List. If you work for a hospital, facility or group that has a “standard medical abbreviations list,” obtain it and review it. Check the records you wrote (after consulting with your attorney) to see if you used any incorrectly; if you did use an abbreviation incorrectly, be prepared to explain what you meant and why you used the abbreviation.

At the Deposition.

1. Dress the Part. As a general rule, unless your attorney advises you that it is okay to wear a nursing uniform, wear your best professional suit or “church clothes.” Regardless, be sure that your clothes are freshly cleaned and not in need of tailoring or repair. If in doubt, take what you plan to wear to your pre-deposition meeting with your attorney.

2. Do Not Be Intimidated. In some cases, an examining attorney will attempt to harass or intimidate a deponent during a deposition. If you have your own attorney present, she or he will attempt to curtail these types of tactics. If you begin to feel pressured, pause and take a breath before you begin your answer. Answers that are not thought out are the answers that the examining attorney will use to destroy your credibility as a witness.

3. Tell the Truth. When being deposed, you are under a sworn oath, to tell the truth. Therefore, it is of the utmost importance that you give only truthful information to the deposing attorney. The truth is the easiest to remember and will help you deal with any psychological intimidation or other tactics that a hostile interrogating attorney might use. Harassment usually occurs when the attorney thinks that the witness is deliberately misstating or withholding relevant facts. Keeping your answers truthful may help reduce this type of behavior by the examining attorney.

4. Give Direct Answers. Give direct, straightforward responses without rambling or exaggerating and without volunteering information that was not requested. It is easy to be misled into “telling all” by a friendly opposing attorney. Keep in mind that the deponent is only required to give knowledge that he or she personally has. If you do not know the answer to the question, you should state that you do not have personal knowledge of the information being asked. Remember, when an attorney for the other side is asking questions, the best answer is the shortest truthful answer. The best answer will usually be: “Yes,” “No,” “I don’t know,” or “I don’t recall.” If one of these answers applies, use it. Do not volunteer information. Additionally, do not guess the answer to the question. Similarly, do not state your opinion; give only facts of which you have personal knowledge. Keep your answers honest, straightforward and direct.

5. Listen Carefully. It is important that the deponent listen very carefully to the question asked by the attorney. Many times, attorneys do not prepare questions or rehearse questions in preparation for a deposition. As a result, some of the questions asked by the deposing attorney may be poorly worded, confusing or may be asked in many parts. Give only the answer to the question asked.

6. Ask the Attorney to Rephrase or Re-ask the Question. The questions asked should be completely understood. If you have listened carefully and you are asked a question that you do not understand, it is proper and appropriate to request that the attorney rephrase the question. You should not feel anxious or embarrassed to request that the question be rephrased.

7. Only Answer Questions Within Your Scope of Work. In some cases, you may be asked medical questions that are outside your knowledge or scope of practice. It is certainly appropriate for you to say that you do not know the answer to the question or that the information is beyond your knowledge as a nurse. You should not answer questions involving subjects about which you are not knowledgeable. It is also proper to state if you do not remember the answer to a question.

8. Stay Calm. While being deposed, attempt to stay calm, relaxed and composed throughout the deposition. This type of behavior will enhance your credibility as a witness. You should not be concerned with how your answers will affect others involved in the lawsuit. Be sure to take your time in answering the questions asked. You should not feel rushed to answer the questions; after all, the attorney deposing you subpoenaed you for the deposition.

9. Speak Clearly. Speaking clearly will also aid you in the deposition. A court reporter is recording everything you are saying. Therefore, you must orally answer every question. It will also assist to curtail rambling if you remember that a court reporter is recording every word you speak.

10. Be Polite. Being polite and cooperative can only help your position. Even though an attorney may attempt to intimidate you, being polite and cooperative will hinder his ability to make you feel uncomfortable.

11. Never Lose Your Temper. Never lose your temper or allow yourself to lose control. Some attorneys will try to get you to do this so you will say something without thinking.

12. No Joking. Do not laugh or joke around immediately before, during or after a deposition. This is a serious matter. Treat it seriously. Never relax your guard around the opposing attorney. He is not your friend.

13. Pause Before Answering. Pause two seconds before you answer each question. This will give you time to think. This will also give your attorney time to object if the question is improper.

14. Stop Immediately if Someone Else Speaks. If anyone else starts to speak, stop talking immediately. If your attorney objects, listen very carefully to the objection. Your attorney may be trying to tell you something.

After your Deposition.

After being deposed, if you made any mistakes in your deposition or later remember an answer, notify your attorney immediately. It is probably not too late to correct it.

You have the right to obtain a copy, check and change any errors or mistakes (even ones you made) in the typed transcript of the deposition. Never waive your right to obtain a copy and read the deposition transcript (unless your attorney has advised you of a good reason to do this before the deposition). Demand that you receive a copy of the transcript so you can review it prior to your later testimony at the trial (which may be years later). Always demand a copy of the transcript with all of the exhibits attached to it.

You have the right to review the entire transcript, correct any typographical errors or any erroneous statements you may have made and file these corrections with the transcript. You can only do this if you exercise your right as a deponent to “read and sign the transcript.” This is very important. Never agree to waive “reading and signing” unless you have discussed it with your attorney before the deposition and you have received a good reason you should do this.

If you will be called as a witness at the trial or in a related case, always review the transcript of your deposition twice, once approximately one week before and again the night before you testify.

Again, until the entire case is over and finalized (only your attorney can tell you when this is), do not discuss the case with anyone else.

Contact Health Law Attorneys Experienced in Representing Nurses at Depositions.

The Health Law Firm’s attorneys routinely represent nurses in depositions, Department of Health investigations, before the Board of Nursing, in appearances before the Board of Nursing in licensing matters, and in administrative hearings.

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

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Nurse Representation, Board of Nursing Cases, Department of Health (DOH) Investigations of Nurses, Representation for Depositions of Nurses, Nurse Administrative Complaint Defense, Appeal of Board of Nursing Final Orders, Nurse License Applications, Nurse Emergency Suspension Order Appeals Representation, Representation of Advanced Registered Nurse Practitioners (ARNPs), Certified Registered Nurse Anesthetist (CRNA) Representation, Certified Nurse Midwife (CNM) Legal Representation, Nursing Contracts Lawyer, Nurse Protocols Representation, Allegations of Drug Diversion by Nurses, Nurse 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 © 2019 The Health Law Firm. All rights reserved.

By |2019-07-11T07:19:07+00:00July 11th, 2019|Nursing Law Blog|0 Comments

How to Challenge an OIG Exclusion Action from Medicare

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

Many health professionals don’t understand the significant repercussions that an exclusion action by the Office of the Inspector General (OIG) can have on their professional careers and future employment. Whether you are a physician, nurse, dentist, psychologist or other health professionals, if you allow yourself to be excluded from the Medicare program, devastating economic results may follow.

The administrative process by which you may challenge a proposal from the OIG for most permissive or mandatory exclusion is challenging. In most cases, you will need experienced legal representation.  Below are the steps in the process you must follow to protect your career and your livelihood.

The Administrative Process to Challenge OIG Exclusion Actions.

1.    Notice of Intent (NOI) received: If the OIG is proposing to exclude a person or entity from Medicare, it will send out a letter called a “Notice of Intent” or “NOI.” This will contain the reasons for the exclusion and will detail hearing or appeal rights.  It is very important to make sure that your state licensing board and Medicare have your correct current address on file because the address which Medicare has will be where the NOI is mailed.  (Note:  the OIG may not send a NOI for mandatory exclusions which carry a 5-year minimum exclusion period.)  You will not have a second chance. Regardless, you usually only have 30 days to submit a written response requesting a hearing and containing information the OIG will consider in making its decision.  In some cases, providers may have the opportunity to present oral arguments before OIG officials. You must make sure that your request is received by the deadline, not just mailed by the deadline.  Send your request by a fast, reliable means (such as Federal Express or U.S. express mail) that you can track; or register for and file it electronically online.  Read the instructions in the letter and follow them. Be sure you get a receipt when you file.

2.    Notice of Exclusion (NOE): Sometimes the OIG will send a “Notice of Exclusion” or “NOE” if it decides to exclude a provider regardless of the response provided to a NOI or in certain cases of mandatory exclusions or certain permissive exclusions where no NOI is ever sent. Medicare exclusions usually take effect 20 days after the NOE is mailed. In cases involving fraud, kickbacks and other prohibited activities, a Notice of Proposal to Exclude or NOPE may be sent instead.

3.    Administrative Law Judge (ALJ) Hearing: Providers have the right to appeal a proposed exclusion by requesting an administrative hearing (similar to a trial) before an “Administrative Law Judge” or “ALJ.” ALJ’s are part of the Department of Health and Human Services (HHS). If you wish to request an ALJ hearing, you must do so within 60 days of receiving the Notice of Exclusion (or according to the instructions), and you must be prepared to raise all of your arguments over issues regarding the decision itself, the proposed exclusion period, mitigating factors or other aspects of the action.

4.    Department Appeals Board (DAB): If you disagree with the ALJ hearing decision, you can further appeal to the HHS “Departmental Appeals Board” or “DAB.” This is a written appeal which will be required to set forth legal errors which were made in the ALJ hearing.

5.    Judicial Review: If you disagree with the decision made by the DAB, your only option is to challenge the final decision in a U.S. District Court.

MOST IMPORTANT, consult a health law attorney experienced in such matters. The consequences of  Medicare exclusion, even a permissive exclusion for one year or three years, are severe. Most people do not realize this until it is too late; then it is too late (in many, but not all, cases).

To learn more about the consequences of OIG exclusion, click here to read one of my prior blogs.

Contact Attorney Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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


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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T19:59:06+00:00July 9th, 2019|Pharmacy Law Blog, Uncategorized|0 Comments

How Criminal Charges Can Affect Your Professional Medical License

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

Every health care provider knows that their license to practice can be disciplined for misconduct on the job. However, many are surprised to learn that they can also be disciplined for actions including criminal charges that occur outside their professional lives.  A criminal conviction for a felony or misdemeanor that is not directly related to their profession can still result in discipline.

Criminal Charges Do Impact Professional Licenses.

Licensing authorities are charged with protecting the general public, not the individuals they regulate. Most health care practitioner practice acts include criminal convictions as one of the grounds for the denial or discipline of a professional license. Some of those acts (for example, Florida) allow the disciplinary authority to impose discipline upon a conviction even when adjudication is withheld.

These authorities can and do impose discipline based upon the facts underlying a conviction, even when the conviction itself is not directly related to the practice of a profession.  For example, a conviction for driving under the influence (DUI) or reckless driving can raise the question of whether the practitioner could be impaired or reckless while providing patient care.  The licensing authority will most likely investigate these matters and the facts underlying the offense to determine if the practitioner poses a threat to the public.

Therefore, if you have been arrested for DUI, disorderly conduct, assault, or any other misdemeanor, you can anticipate that the state, the Department of Health (DOH) or the Department of Licensing and Regulatory Affairs will start an investigation. It is imperative that you retain an attorney who can immediately defend your freedom during your criminal case and also protect your livelihood during licensing proceedings.


Conviction of Felony or Misdemeanor Charges May Lead to Suspension of Professional License.

In the event of a conviction, in many cases, this may trigger a report to the state licensing board.  In Florida, for example, a physician or other licensed health professional who is required to have a practitioner profile must update that profile with the information about the conviction within 15 days.  In Florida, a physician or other licensed health professional must also notify his or her licensing board for the Department of Health (when there is no board), in writing, within 30 days.

If you are facing felony or misdemeanor charges, it is imperative that you seek the advice and experience of an attorney who can navigate the criminal and administrative courts and get you the best possible result to protect your freedom and livelihood. Remember, your profession is often your only means of support.

Practitioners who have been arrested generally want their criminal cases resolved as quickly and quietly as possible.  Unfortunately, they may inadvertently accept a plea arrangement that results in severe discipline or revocation of their license.  All health care providers and their criminal attorneys should consider the consequences to the practitioner’s license before accepting a plea arrangement and should consult with an experienced health law attorney. Click here to read one of our prior blogs for more information on this.

Contact Health Law Attorneys Experienced in Handling Licensure Matter and Disciplinary Matters.

If you have been arrested, it is strongly recommended that you retain an experienced health care attorney who can advise you and your criminal counsel as to the effects a potential outcome could have on your license.

The Health Law Firm routinely represents physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters.  We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

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

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Health care license defense representation, professional licensure defense, representation for professional license suspension, reporting physician arrests and convictions, health care licensure defense attorney, medical license defense attorney, physician defense lawyer, representation for physician criminal charges, representation for nurse criminal charges, representation for dentist criminal charges, Department of Health (DOH) conviction, misdemeanor offenses physicians, legal representation for Supersedeas Relief, Department of Health (DOH) investigation, DOH representation, DOH attorney, DOH investigation representation, DOH defense lawyer, representation for license suspension, license revocation attorney, representation for license revocation, health care license defense attorney, representation for health care license, representation for health care professionals, representation for administrative hearings, representation for administrative appeals, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law defense attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2018 The Health Law Firm. All rights reserved.

By |2019-06-18T19:51:28+00:00June 18th, 2019|Colorado Health Law|0 Comments

Impaired Practitioner Programs: What Happens if You’ve Been Accused of Impairment or Misconduct?

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

In an industry that revolves around helping others, physicians and other health professionals sometimes find that they are the ones being pushed toward a treatment program. Long hours, heavy workloads and stress among health care professionals can sometimes lead to unsafe, unprofessional behavior and impairment allegations.

We routinely work with physicians, nurses and other health professionals who are accused by employers, hospitals, competitors, or terminated employees of impairment due to drug or alcohol abuse, or mental impairment, of being a “disruptive physician” or of sexual boundary issues. However, not all physicians and health professionals who are referred to a health program are in actual need of rehabilitation services.

What is the Impaired Practitioners Program?

The Florida Department of Health’s (DOH) Impaired Practitioners Program (IPN), Section 456.067, Florida Statutes, is administered by the Intervention Project for Nurses or “IPN” (for nurses and nurse practitioners) and by the Professionals Resource Network or “PRN” (for physicians, dentists, pharmacists and all other health professionals). IPN is responsible for all nurses and works with and through the Florida Board of Nursing. PRN works with and through the Florida Board of Medicine, Board of Dentistry, Board of Pharmacy, and other Department of Health Professional Boards.

You Are Instructed to Report Yourself to IPN or PRN; What Now?

These types of allegations discussed above made against a physician, nurse or other health professional are extremely serious because they are usually treated by the DOH as “Priority 1” or “Fast Track” offenses. This means that the charges against the individual will usually be automatically considered for an Emergency Suspension Order (ESO) issued by the Florida Surgeon General at the request of the Department of Health. Unless a qualified, experienced health care attorney is able to immediately produce reliable documentation and evidence showing the health professional is not impaired, the Surgeon General will usually issue an ESO. Click here to read one of my prior blogs to learn more.

Even in cases where the individual may actually have committed an offense, there are a number of administrative and procedural measures that may be used to avoid a suspended license. For the innocent health professional, an experienced attorney familiar with such matters may be able to obtain additional drug testing, polygraph (lie detector) testing, medical examinations, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which may help to show innocence and lack of impairment.

Call an Attorney Immediately, at the Beginning and Prior to Making Any Decisions or Calls!

If you are accused of wrongdoing, especially accusations involving drug or alcohol abuse or impairment, even if you are threatened with being reported to the DOH or your professional board, then it may be much better to defend yourself and fight such charges instead of trying to “take the easy way out.” This is especially true if you are being falsely accused. There are many problems that you can avoid by having good legal advice before you make a stupid mistake. We are often consulted and retained by clients when, after they have made the mistake of talking to the wrong people about the wrong things, they are in a situation they could have avoided.

Our firm has extensive experience in representing physicians and other professionals accused of drug abuse, alcohol impairment, mental impairment, and sexual boundary issue, as well as in dealing with the IPN and the PRN, their advantages and disadvantages, their contracts, their policies and procedures, and their requirements.

The bottom line is: if you are accused of drug impairment, alcohol impairment, drug diversion, sexual boundary issues, sexual misconduct, or of being mentally or physically impaired, immediately contact an attorney experienced with IPN and PRN and with the Board of Medicine, Board of Nursing, Board of Dentistry, Board of Pharmacy, and other professional boards. Don’t risk losing your livelihood by just taking the apparently easy way out without checking into it. There may be other options available for you, especially if you are innocent and not impaired.

To read one of my prior blogs about the recent changes to Florida’s Impaired Practitioners Program, click here.

Contact Experienced Health Law Attorneys in Matters Involving PRN or IPN.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses and other health professionals in matters involving PRN or IPN. Our attorneys also represent health providers in Department of Health investigations, before professional boards, in licensing matters, and in administrative hearings.

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

Sources:

Masterson, Les. “Physician wellness, quality of care go hand-in-hand, analysis finds.” Healthworks Collective. (September 10, 2018). Web.

Maria Panagioti, Keith Geraghty, Judith Johnson. “Association Between Physician Burnout and Patient Safety, Professionalism, and Patient Satisfaction.” Journal of American Medical Association (JAMA). (September 4, 2018). 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for impaired physicians, legal representation for Department of Health (DOH) investigations, Intervention Project for Nurses (IPN) defense attorney, Professionals Resource Network (PRN) defense legal counsel, DOH investigation defense attorney, legal representation for investigations against health care professionals, legal representation for Florida DOH investigations, Florida DOH representation, DOH complaint defense, legal representation for DOH complaint, Florida impaired practitioners program, legal representation for PRN matters, legal representation for IPN matters, legal representation for disruptive physician issues, health law defense attorney, legal representation for health care professionals, changes to Florida impaired practitioners program, legal representation for health care investigations, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T01:29:18+00:00June 18th, 2019|The Health Law Firm Blog|0 Comments

Employment Contracts: Tips For New Physicians and Health Professionals

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

This is intended to provide an introductory review of the basics of contracting for new physicians and health professionals, primarily by discussing employment agreements. We will highlight
many of the common provisions found in employment contracts, along with many of the mistakes and pitfalls that we see in our day-to-day practice.

After reading this, it is our hope that new physicians and other health professionals will understand the common language and terms found in employment contracts. Therefore, they can recognize mistakes commonly made by physicians and health professionals when negotiating them. We hope to help make both employers and employees more knowledgeable about employment contracts so they can avoid potential problem areas and legal entanglements.

Our comments here are meant to provide general rules we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule.

Tip 1 – There is No Such Thing as a “Standard” or “Routine” Physician Employment Agreement.”
No two employment agreements are identical. Each must be reviewed on its own terms. It is important to consult with a healthcare lawyer experienced in negotiating employment contracts and evaluating health care business transactions.

Tip 2 – Everything is Negotiable.
Even though an employer may have what appears to be a “standard” employment contract for all physician employees, this can have changes, amendments, schedules, exhibits or terms that are varied from physician to physician or professional to professional. Generally, large employers are less likely to change their form to accommodate the physician than small organizations, but they can and often will. Small employers are often willing to make more changes to their written agreements.

If there are any changes, additions or clarifications you need to make to the contract, then put them in writing, sign them, incorporate them into the contract and attach them to the contract.

Tip 3 – Be sure the Wording of the Contract Represents Exactly the Agreements you Made Orally.
If it is different or not specified, the language in the contract will govern in any future dispute.

Tip 4 – Make sure the parties are identified.
In many contracts we review, the correct names of the parties, especially the employer, are not included. Often, the only identification of the employer is a fictitious business name or part of a fictitious business name. Additionally, many business entities are not incorporated in the state in which the job is located. There is a misconception that a corporation or limited liability company, its owners and directors have far greater legal protections in states such as Delaware. Therefore, a disproportionately greater number are incorporated or organized there.

Often, a large institution such as a hospital system or health maintenance organization (HMO) has a business entity to hire and manage its physician and other health professional employees. Sometimes a potential employee may incorrectly believe that he or she is being employed by the larger organization. More often, the business entity that employs the health professional is actually a wholly owned subsidiary corporation or company. Always be sure that the contract includes the complete name of any corporation or company, the state in which it is incorporated (or organized or registered), its address and its fictitious business name (sometimes called a d/b/a or “doing business as” name). We include the complete identities and addresses of each party to the contract in an addendum if they are not included in the main contract.

Tip 5 – Make sure that the employee or contractor is fully and consistently identified and treated as such throughout the contract.
In the case of physicians and many other health professionals, a medical group or business with which that person contracts may seek to treat him or her as an independent contractor instead of an employee. Independent contractors have far fewer rights and protections against the party with which they are contracting and have to incur a number of expenses that a true employer would have to pay otherwise.

It may be legally incorrect for a group or business to attempt to treat someone as an independent contractor instead of an employee. This may be attempted by someone who has received incorrect advice on how to evade taxes or to avoid paying legally required taxes and fees (such as Social Security deductions and workers compensations insurance payments). If the Internal Revenue Service (IRS), Department of Labor or Department of Finance scrutinizes the employing entity, it may result in an assessment of back taxes and penalties, stop work orders and other sanctions being taken against the employer.

In most cases, doctors, nurses, physical therapists, dentists, psychologists, nurse practitioners, physician assistants, mental health counselors, massage therapists, and other health professionals should be treated as employees. The law requires that an employer pay a portion of the taxes, social security and other government assessments for those employees. Being an employee usually requires the employer to include the employee in any health insurance, retirement plans or other employer benefit plans which the employer has. The employer is also required to incur the costs of withholding taxes, unemployment compensation assessments, social security payments and other government-required deductions and forwarding them to the correct government entity. This saves administrative costs an employee might otherwise have to incur.

If the health professional has his or her own professional service corporation (sometimes called a professional association or “P.A.”) or limited liability company (LLC) then this business entity can be contracted by another group or business as an independent contractor. The individually-owned P.A. or LLC is the employer of the health professional. Employees receive an IRS Form W-2 at the end of the year. This recaps the withholdings, Social Security, Medicare, unemployment compensation and other taxes and assessments deducted from their pay. Independent contractors receive an IRS Form 1099 at the end of the year with the total compensation paid to them reflected on it. Employers are vicariously liable for the negligent acts of their employees while they are within the scope and practice of their jobs. The company or group that retains an independent contractor is not liable for the negligent acts of the independent contractor under the same circumstances.

Regardless, it is important that a contract accurately identifies whether the health professional is an employee or an independent contractor. It must also consistently refer to and treat the individual as either an employee or an independent contractor throughout the contract. If the contract is one that an employer has taken and tried to modify without the help of an attorney, it may use the term, incorrectly or include conditions that violate the law or that negate the treatment desired. It is almost always far more advantageous for the individual being hired to be treated as an employee.

Tip 6 – Be Sure That You Receive a Signed, Dated Copy Back Before You First Start Working.
If you are an employee, be sure that you receive a copy of the contract back that has actually been signed and dated by the employer. One of the most common legal problems we encounter when we consult with an employee whose employer has broken the contract is the absence of a signed or dated copy of the contract. Anyone can type up a blank contract. There may be many preliminary drafts of a contract that are not agreed to or executed by the parties. How can you prove that this is the actual agreement between the parties if you do not have a copy that is signed by the parties?

Tip 7 – Make Sure That all Exhibits, Schedules, Addendums and Referenced Documents are Attached to the Contract.
We often see contracts that refer to attached exhibits for job requirements, bonus calculations, benefits, employer handbooks, employer code of ethics or conduct, etc. However, in many cases, these are not completed or not attached to the contract when it is signed. Make sure that any documents that are referred to by the contract are actually attached to it and are completed. These are part of the contract. Your copy is not complete without them.

Tip 8 – Amend the Contract, By Hand if Necessary, to Make It Consistent with the Agreement of the Parties.
A contract is not a sacred document. You may write on it, if necessary, to amend it. You may attach separate handwritten amendments to it. Just make sure any handwritten changes on the contract itself are initialed by each party. Make sure any amendments attached to it are signed and dated by each party to the contract. Remember, also, that the changes must be understandable. If a judge is later called on to read it and interpret it, it must be clear to the judge.

Under the general rules used to construe contracts, typed changes and amendments to preprinted forms take precedence over the preprinted portions. Handwritten changes and amendments take precedence over typed or preprinted portions, and spelled out numbers and dates supersede numerical ones (if there is a conflict). However, there must be evidence that these were agreed to by both parties (such as initials or signatures prove).

Tip 9 – Restrictive Covenants (Sometimes Referred To As Covenants Not To Compete) Are Enforceable By Law in Florida.
A covenant not to compete is common in most physician contracts. This clause prevents a departing physician from competing with the employer in a specific geographic area for a specific period of time. These restrictive covenants are, as a general rule, enforceable under Florida law. There are exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, especially in the case of a physician. However, unless you have money set aside to pay for litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to have it removed completely or reduce the period of time and reduce the geographic area as much as possible. Also, it should be worded so as to only apply to the office or location in which you actually work and not to the medical sub-specialty or type of practice in which you will work.

If you decide you are going to leave a group or practice and you may need to work in violation of a restrictive covenant, it is very important to plan ahead for this. Often strategies can be developed that will avoid litigation.

Tip 10 – Avoid Agreeing to Pay the Premium for Tail Coverage For Professional Liability (Medical Malpractice) Insurance, Especially If The Employer Terminates The Employment.
If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to fifty percent (50 %) or have it reduced to twenty-five percent (25%) for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage. If you maintain your insurance with the same company, in reality, your “tail” is covered and you should need no additional tail coverage policy.

Tip 11 – Carefully Consider Clauses That Allow the Employer to Terminate the Agreement Without Cause on a 30 Day, 60 Day, 90 Day or 180 Day Notice.
Many agreements contain a clause allowing one party or both parties to terminate the agreement “without cause” by giving advance notice of so many days. With such a clause in your contract, you no longer have a one or two-year agreement. Instead, you have a 30 day, 60 days, 90 days or 180-day contract. Termination without cause provisions can work for you or against you. Regardless, the term of employment is shortened if there is one. Think about whether or not you can find another job and relocate in 30 days.

Tip 12 – Include a “Cure” Provision If There Is a “For Cause” Termination Provision in The Contract.
This a provision that requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

Tip 13 – In the Contract Specify All Material Terms in a Promise to Make You a “Partner” or “Shareholder.”
A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it (price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable. Also, remember that a promise to “consider” you as a “partner” or “shareholder” in a contract is just as worded. You may be considered and denied this important opportunity.

Tip 14 – A Good Contract Identifies Typical Schedule, Where the Physician Will Work and Expectations About Call.
A contract that simply states the physician will “perform the usual duties of a physician” does not give either party much information about the expectations of the other party. Attention to this section is particularly important for physicians who wish to work part-time, to work only a specific schedule, to work in a specific clinic; or who have special arrangements concerning call. This section can also be used to answer questions about what level of involvement in administrative duties is anticipated and whether certain community activities are expected.

Tip 15 – A Physician’s Compensation Should Be Set at a “Fair Market Value.”
Physician employment and compensation are subject to anti-kickback laws. Generally, a physician’s compensation must be set at a fair market value demonstrating reasonable compensation. Fair market value is determined by comparing the entire compensation package, including benefits, insurance and signing bonuses to industry standards for the relevant specialty and geographic market. In almost any compensation arrangement, the physician and the employer will be protected from legal scrutiny when the compensation is determined to be fair market value, as long as other requirements are also met (such as a written contract, signed by the parties, at least a year duration, etc.).

Compensation usually has two components: salary and benefits. The typical employment agreement will provide for a guaranteed salary for the first one to two years. After that, the physician is usually compensated based on production. It is important to remember that some medical groups might offer an employed physician an opportunity to buy into the group after a period of time as an employee. This type of agreement in which the physician would be able to purchase shares or options in the group may or may not be part of the initial employment agreement. Such arrangements might be referred to as a “buy-in” clause or “partnership” arrangement. It is very important to understand that if the group is a corporation or professional association (P.A., a type of corporation), then the ownership interest will be “shares” and the physician will become a “shareholder.” If the group is a limited liability company (LLC), then the ownership interest is referred to as a “membership” and the physician will become a “member.” The term “partner” is often incorrectly used to refer to either one.

It is preferable to have these types of arrangements drafted separately from the employment agreement since their duration is likely to be longer than the employment agreement. It is always necessary to have all of the details spelled out, including the buy-in price and how it will be paid. Otherwise, it will not be legally enforceable. Common benefits include: family health insurance, dental insurance, life insurance, an allowance for continuing medical education (CME), paid time off or vacation and sick pay, short-term disability insurance, long-term disability insurance, and retirement plans.

Tip 16 – Determine How Outside Employment and Compensation is Handled.
If outside employment is allowed, it’s imperative you know who is entitled to the income. Some employers prohibit outside employment, while others allow it but require that the income be turned over to the employer. If the physician anticipates “Moonlighting,” the physician should negotiate to minimize the employer’s control over outside employment and income from it. If the physician expects to be involved in significant volunteer activities working as a physician, the contract should say whether the employer has the right to approve or reject such volunteer activities.

Tip 17 – Pay Close Attention to the Termination Clause.
This is the single most important clause of a contract because it can dash the expectations of one or both parties. Close attention should be paid to the terms and the conditions. The termination section usually allows the employer to immediately terminate the physician’s employment if certain events occur, such as the physician losing his or her medical license, being convicted of a felony or dying. Many contracts also permit immediate termination if the employee’s license is restricted, if privileges are significantly restricted, or if the employee becomes disabled. Almost all contracts also permit early termination by either party by simply giving notice. While the notice periods range from 30 to 180 days, most physician employment agreements permit either party to terminate the agreement with 60 to 90 days notice. This type of term essentially leaves the physician with a contract that lasts only for the stated notice period.

Tip 18 – Negotiate Reasonable Access to Patient Records.
Most employment agreements provide that any patient records created by the employee belong to the employer. However, the physician should negotiate for reasonable access to those records even after the physician leaves the employer for the purposes of defending a malpractice action, a credentials committee investigation, or a Florida Department of Health (DOH) inquiry. Access to such records is very helpful, and sometimes necessary, to defend these kinds of actions.

Tip 19 – Intellectual Property Usually Belongs to the Employer.
If an employee performs research or publishes books or papers during work time or even after hours, that intellectual property usually belongs to the employer. That is unless there is a written agreement that gives the physician ownership rights to these materials. An employee may want to negotiate the ownership of that intellectual property before signing the contract.

Tip 20 – Attorney Fees in Contract Disputes.
Ordinarily, disputes are resolved in the courts, and each party will pay their own litigation costs and attorney fees. Sometimes, however, the parties will agree to use arbitration as an alternative way of resolving disputes. While each process has its advantages and disadvantages, arbitration is generally faster and less expensive than litigation. Unless the parties agree otherwise, each party to a lawsuit, mediation or arbitration ordinarily will pay his or her own attorney’s fees and costs. However, most physician employment agreements include a clause obligating the losing party to an enforcement action to pay for all legal fees of both parties. Most places in the U.S. follow the American Rule with regards to attorney fees. Under the American Rule, each party is responsible for its own attorney fees unless a statute or contract provides otherwise. Employment agreements very often include a provision that provides that the prevailing party is entitled to his/her attorney fees in any dispute under the contract.

Tip 21 – Read the “Boilerplate” Provisions.
Most employment agreements have a series of “boilerplate” provisions that usually come at the end of the agreement. These provisions may include important provisions and should be considered carefully. For example, very often there will be a provision that states the written contract in the final agreement of the parties. If something was negotiated that is not included in the contract it will be precluded by the boilerplate provision. Anyone negotiating a contract should be concerned with any promise to work it out later.

Tip 22 – Be Detailed and Specific on What Income Will Go to Employer and Any That May Be Kept by the Employee.
This tip is an expansion on Tip 16 – Determine How Outside Employment and Compensation is
Handled. Typical physician employment agreements will contain statements such as: “The physician agrees to devote his/her complete time and attention to the business of the employer.” Or they may contain a clause stating: “All income derived from professional services delivered by the employee shall belong to the employer,” or something similar.
This can be problematic if the employee:

A. Moonlights, for example by pulling shifts at a hospital’s emergency department on the weekends;
B. Has a separate medical practice or business on the side such as providing diagnostic studies, testing, counseling, etc.;
C. Works part-time somewhere else, such as at a walk-in or urgent care clinic;
D. Consults as a practice management consultant, a risk management consultant, etc.;
E. Serves as a medical expert reviewing patient records for attorneys and providing expert opinions;
F. Serves as medical director of nursing homes, or home health agencies;
G. Invents new medical inventions or technologies on his/her own time;
H. Teaches; or
I. Lectures or writes and receives honoraria.

I have been involved in several court cases where the physician took employment with a large healthcare system and had an oral understanding, never in writing or included in his/her written contract, that the employee could continue a part-time medical practice and keep all of the income from it. This only became a problem (a big problem) years later when the employer found out about it and decided to sue the employee. The employer wanted all of the extra income that the employee had made and had not turned over to the employer.

Make sure that if there are any activities that you will participate in on your own time, including other part-time employment or moonlighting, this is specifically spelled out in the contract and the party who is entitled to receive the income from it is also specified. Furthermore, in the case of government employees such as military or Veterans Administration (VA) physicians, these types of activities may be illegal without advance written permission from the government.

Tip 23 – Make Sure You Receive a Copy of the Contract Back Signed and Dated by the Other Side.
As we have written before, one of the biggest problems we see again and again is when a dispute arises, the party coming to us (usually the employee) does not have a copy of the contract that is signed or dated by the other party (usually the employer).

Can you imagine buying or selling a house without getting a contract signed by each party? Can you imagine buying a car without getting a copy of the contract signed by the other party? Then how can you enter into a contract covering years of time for something as important as a profession without obtaining a signed and dated copy from the other side? Think of employment contracts as prenuptial agreements. As long as everyone does what he or she is supposed to do and things work out okay, the contract is not needed or referred to in most cases. It is only if things start going wrong, for example, if the employee does not work the hours he is supposed to if the employer does not pay the bonuses it agreed to pay, that the contract gets pulled out for possible enforcement.

In litigation in which I have been involved over physician employment agreements, I have had the following defenses raised by employers when sued for breach of contract by an employee:

A. The employer never agreed with the changes the employee wanted in the contract, so the employer never signed it.
B. The employer and employee were involved in negotiations on a possible contract but could never reach an agreement, so the employee has no contract and is merely an “at will” employee;
C. There was never a signed contract so the employment agreement is unenforceable under the applicable statute of fraud.
D. There was never a signed contract so the employment agreement is illegal and unenforceable under the Stark Act and the Anti-Kickback Statute.

If you are the employer, never let the employee start working before you have a copy of the contract back signed and dated by the employee. If you are the employee, never start working, not even a day, before you have a copy of the contract back signed and dated by the employer.

When we review contracts we often add an addendum or amendment to the contract that states: “This agreement shall not be valid or enforceable unless Employee actually receives a copy signed and dated by the employer on or before (date) and employee shall not be expected to begin work until then.”

Adhering to these types of requirements keeps everyone honest.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

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, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: physician employment agreement, physician employment contract, health professional contracting, representation for physician contracts, physician contract attorney, employment contract lawyer, healthcare contract attorney, business law attorney, contract litigation, business litigation, contract terms, physician agreements, business transactions, restrictive covenants, noncompetition agreements, covenants not to compete, representation for restrictive covenants, representation for noncompetition agreements, The Health Law Firm reviews, representation for health care providers

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T00:49:24+00:00June 18th, 2019|Medical Education Law Blog|0 Comments

Review Your Department Of Health Practitioner Profile or it Could Cost You!

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

In 1997, the Florida Legislature passed a statute that requires the Department of Health (DOH) to maintain online practitioner profiles for certain health care professionals. Practitioner profiles are required for medical doctors, osteopathic physicians (DOs), chiropractors (DCs), advanced practice registered nurses (APRNs) and podiatric physicians. The statute specified the required information to be maintained, how it was to be reported, and other requirements dealing with compiling and updating the information in the profiles.

To visit the DOH’s website and learn more about these profiles, click here.

What Information Does the Profile Include?

The profile contains required and optional information from the healthcare provider. Required
information includes:

1. education and training, including other health-related degrees, professional and postgraduate training specialty
2. current practice and mailing addresses
3. staff privileges and faculty appointments
4. reported financial responsibility
5. legal actions taken against the practitioner
6. board final disciplinary action taken against the practitioner
7. any liability claims filed against podiatric physicians which exceed $5,000
8. any liability claims filed against M.D.s and osteopathic physicians which exceed
$100,000

Optional information may include committees/memberships, professional or community
service awards, and publications the practitioner has authored.

These profiles are published on the DOH’s website. They are freely accessible by the public and are frequently used by employers, medical staff committees, and insurance panels to verify information provided by applicants.

Be Sure to Check Your Profile for Accuracy!

If you are a licensed profiled health care practitioner, you should review your profile information frequently and report any corrections to the DOH immediately! By law, you are responsible for updating your profile information within 15 days after a change of an occurrence in each section of the profile.

Unfortunately, information on practitioner profiles is not always 100 percent correct. Oftentimes, the information in a profile is outdated or misreported. The majority of the information in a profile is supposed to be entered through the website by the practitioner personally; however, the DOH is free to add information on its own.

It’s important to note that not all of the information on the practitioner profile is verified by the DOH. To view which information is self-reported, as well as reported by the DOH, click here to view the DOH’s profile guide.

Recently, The Health Law Firm had a client whose employment contract was not renewed due to misreported criminal history information on the DOH practitioner profile. Most troubling was the fact that this information appeared on the profile suddenly; it had not been on the practitioner profile in the past. Furthermore, the information was decades old and had been posted in direct violation of a court order sealing the underlying records.

We have also had cases where information was incorrect, where the same information was repeated several times, or where the information on the profile did not meet the basic requirements for reporting.

Fight False Information on Your Practitioner Profile.

The Health Law Firm has been successful in having the DOH remove criminal history information and other incorrect information from a practitioner profile.

It is imperative that you check your practitioner profile regularly to ensure that it is accurate with respect to the information that you provided and that may have been provided by the DOH. If you find that confidential or incorrect information has been posted to your profile, contact an attorney experienced with dealing with these matters immediately. You never know when your employer, a business associate or potential patient will look up your information on your profile.

Contact Health Law Attorneys Experienced with the Department of Health Matters and Investigations.

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, Durable Medical Equipment (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider

Our attorneys provide legal representation in the Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) investigations and other types of investigations of health professionals and providers.

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

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Keywords: Department of Health investigation representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-06-14T00:58:52+00:00June 14th, 2019|Pharmacy Law Blog|0 Comments

Helpful Tips to Avoid Unlicensed Practice of Nursing Charges

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

The Florida Department of Health (DOH) has increased the investigation and prosecution of unlicensed practice of nursing and other health professions. More resources and more investigators are being assigned to this duty. This dramatic increase in resources and staff has resulted in the investigation of more complaints than ever regarding the unlicensed practice of nursing.

Here are some tips you can use to avoid charges of unlicensed practice of nursing or of aiding and abetting the unlicensed practice of nursing:

1. If you are not licensed as a nurse in the state of Florida and you are working in Florida, do not call yourself a nurse. This by itself violates the law.

2. It does not matter if you are licensed as a nurse in another state or another country. If you are not licensed in Florida, you may not legally refer to yourself as a nurse here.

3. Wear a name tag that identifies you as “Medical Assistant,” “Doctor’s Assistant,” “Phlebotomist,” “Clinic Staff,” or title other than a nurse if you are not a licensed nurse in Florida.

4. If a patient or your own staff incorrectly refers to you as a “nurse,” correct them and advise them that you are not licensed in the state of Florida or that you are not a nurse, but a medical assistant.

5. If you are a doctor, clinic administrator, or office manager, never refer to a medical assistant, certified nursing assistant (CNA) or another unlicensed person as a “nurse” or “the nurse.”

6. Be sure none of your business cards, resume, letterhead or correspondence refers to you as a nurse, R.N., or L.P.N., unless you are actually licensed in the state.

Please, note that we have been required to provide legal advice and representation to many different individuals because of situations like those listed above.

Words of Wisdom.

The DOH’s Bureau of Enforcement is cracking down on unlicensed activity. It is highly likely that if you are practicing a health profession without a license, any complaint about you will be investigated. Practicing a health care profession without a license is a criminal offense. Penalties include arrest by law enforcement, fines, and the issuance of a cease and desist order.

To view the DOH Unlicensed Activity Program website, click here.
Read one of my recent blogs about Florida DOH practitioner profile’s here.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-06-13T03:32:57+00:00June 13th, 2019|Nursing Law Blog|0 Comments

Contracting 101: Tips For Medical Graduates Entering the Workforce

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

This blog is intended to provide an introductory review of contracting 101 basics for medical graduates entering the workforce as residents and fellows. We will highlight many of the common provisions found in employment contracts, along with many of the mistakes and pitfalls that we see in our day-to-day practice.

By the end of this informational blog, it is our hope that medical graduates will better understand the common language and terms found in employment contracts for health care professionals. The following tips are meant to assist new professionals in recognizing common mistakes made by physicians and health professionals when negotiating contract terms. We hope to help make both employers and employees more knowledgeable about employment contracts so they can avoid potential problem areas and legal entanglements.

Our comments in this blog are meant to provide general rules and recommendations that we have learned from our experiences. However, please remember, every situation is different and there are exceptions to every rule. These tips are not intended to constitute legal advice.

We recommend contacting an experienced health attorney for questions or concerns regarding specific employment contracts or to thoroughly review all of the contract terms prior to acceptance.

Tip 1 -“Standard” or “Routine” Physician Employment Agreements Do Not Exist.

No two employment agreements are identical. Each must be reviewed on its own terms. It is important to consult with a healthcare lawyer experienced in negotiating employment contracts and evaluating health care business transactions.

Tip 2 – A Negotiation is Always an Option.

Even though an employer may have what appears to be a “standard” employment contract for all physician employees, this can have changes, amendments, schedules, exhibits or terms that are varied from physician to physician or professional to professional. Generally, large employers are less likely to change their form to accommodate the physician than small organizations, but they can and often will. Small employers are often willing to make more changes to their written agreements.

If there are any changes, additions or clarifications you need to make to the contract, then put them in writing, sign them, incorporate them into the contract and attach them to the contract.

Tip 3 – All-Oral Agreements Should be Accurately Reflected in the Wording of the Contract.

If it is different or not specified, the language in the contract will govern in any future dispute.

For more information, please read one of my prior blogs on physician and employment contracts here.

In our future blogs, we will continue to provide tips on various issues to watch for in health care employment contracts.

Contact a Health Care Attorney that is Experienced in the Representation of Medical Students, Interns, Residents and Applicants, Fellows and Those Involved in Graduate Medical Education.

The Health Law Firm and its attorneys represent interns, residents, fellows and medical school students in disputes with their medical schools, supervisors, residency programs and in dismissal hearings. We have experience representing such individuals and those in graduate medical education programs in the following areas: in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), discrimination due to race, sex, national origin, sexual orientation and any other matters, reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete).

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

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, 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 © 2019 The Health Law Firm. All rights reserved.

By |2019-06-12T05:23:51+00:00June 12th, 2019|Medical Education Law Blog|0 Comments
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