Colorado Health Law

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Colorado Unveils New Weapon in Fight Against Prescription Drug Abuse

By Carole C. Schriefer, R.N., J.D., The Health Law Firm

In the United States, Colorado ranks among the highest in prescription drug abuse. Prescribing practices have contributed to both the overuse as well as the illegal use of controlled substances. Recently, the Colorado Medical Board in collaboration with the Colorado Dental Board, Colorado Board of Nursing, Colorado Board of Pharmacy, and the Nurse-Physician Advisory Task Force for Colorado Healthcare, passed a policy for prescribing and dispensing opioids. This is the first time that all four Colorado licensing agencies have worked together to formulate a common policy for health care providers.

The new guidance sets the tone for how complaints involving prescribing and dispensing controlled substances will be viewed by these regulatory boards.

To read the new policy in its entirety, click here.

An Overview of the Prescribing and Dispensing Policy.

The new policy aims to reduce prescription drug abuse by better managing opioid prescribing and dispensing. The policy states that providers working with patients who are prescribed opioids should:

– Follow the policy for prescribing and dispensing opioids;
– Be informed about evidence-based practices for opioid use in health care and risk mitigation;
– Collaborate with the integrated health care team to decrease overprescribing, misuse and abuse of opioids;
– Use the Colorado Prescription Drug Monitoring Program (PDMP) when initially prescribing medication and with each refill;
– Use caution when dispensing to new or unknown patients, filling weekend or late day prescriptions, and when filling prescriptions issued by a provider far from the location of the pharmacy; and
– Educate patients on appropriate use, storage and disposal of opioids, risks and the potential for diversion.

Red Flags.

The new policy describes certain “red flags” health care providers should look for when prescribing and dispensing opioids. It alludes to certain prescription amounts and types that will likely be considered substandard in the absence of a compelling reason for the prescription. For example, the policy advises opioid doses greater than the equivalent of 120 mg morphine are dangerous. The policy also advises against opioid treatment that exceeds 90 days. It’s suggested that prescribers should consider discontinuing opioid therapy when:

– The underlying painful condition is resolved;
– Intolerable side effects emerge;
– The patient’s quality of life fails to improve;
– Functioning deteriorates; or
– There is aberrant medical use.

Tread Lightly When Prescribing Opioids.

Whether you are a physician, nurse, dentist, pharmacist or other health care provider practicing pain management, you should read the entire policy and strictly follow its guidance. Keep detailed records of your pain patients’ care, including copies of PDMP data. As a professional dealing with pain patients, you should also feel comfortable referring appropriate patients to addiction and pain management specialists at any sign of abuse. Failure to follow the new policy may lead to disciplinary action against your license.

For more tips to protect yourself from being accused of overprescribing, click here for a previous blog.

Comments?

What do you think of Colorado’s policy for prescribing and dispensing opioids? Do you think this new policy will make an impact on the prescription drug abuse throughout the state? As a health care provider, will you follow the new policy? Please leave any thoughtful comments below.

Contact A Lawyer Experienced in the Representation of Health Care Professionals in Pain Management Defense.

The Health Law Firm attorneys represent physicians, pharmacists, nurses, clinics, dentists, pharmacies, health facilities and other health care providers in different cases involving allegations of overprescribing narcotics and pain medications. These include criminal investigations by local police and law enforcement authorities, investigations by the U.S. Drug Enforcement Agency (DEA), complaints against professional licenses, and other types of cases. Having attorneys familiar with the medical standards of care and guidelines for prescribing narcotics and having access to expert medical and pharmacy professionals who can testify as expert witnesses in such cases is also crucial. We have represented professionals in administrative investigations and administrative hearings at both the state and federal level.

Call (970) 416-7456 now or visit our website www.TheHealthLawFirm.com.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

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 © 1999-2014 The Health Law Firm. All rights reserved.

This Little Piggy Went to the Market, This Little Piggy Ended Up in Court.

By Lance O. Leider, J.D., The Health Law Firm

The jig is up. At least it is for a podiatrist in Colorado. On Thursday, February 12, 2015, the physician in question pleaded guilty to one count of health care fraud. Through improper location coding, the podiatrist allegedly defrauded Medicare out of higher reimbursements.

According to The Daily Sentinel, the podiatrist is accused of performing services at a nursing home while claiming otherwise. The physician allegedly billed for services based upon location coding showing the patients were seen in his private office, not in the nursing facility in which they resided.  In doing so, he received a higher reimbursement rate than he was eligible for.

The Logistics of The Scheme.

When registering to become a Medicare provider, physicians are required to provide the location at which they provide services.  Then when the services are billed, a place of service modifier can be attached to the code (e.g., hospital, private office, assisted living facility, etc.) to determine whether the service qualifies for a bump in reimbursement.  Services provided in an office setting typically receive reimbursements at a higher level in order to compensate for the overhead of the physician. Office expenditures such as rent, insurance, utilities and other cost associated with running a business are taken into consideration.

dollar sign

The podiatrist was allegedly granted three months of rent-free space at the nursing home to provide services for the residents.  The physician, therefore, considered this to be enough to bill the office place of service modifier.  According to court records, the space he practiced out of was actually a storage room/beauty salon of the facility.

The charging document claims that the physician improperly billed on only two dates of services.  Reports differ on the amount of alleged fraud (some reports are as low as $2,000 while others are as high as $50,000).  But regardless of the actual, this story goes to show that the federal government is not above felony prosecution for less than “blockbuster” amounts of fraud.

The Benefits Never Outweigh the Risks.

With the sentencing hearing in May, the physician could be sentenced to probation or a maximum of 10 year in prison, and fined up to $250,000. In addition, the podiatrist will no longer be permitted to treat Medicare patients.  It is also possible that the podiatrist will be unable to retain his license to practice due to being a convicted felon and being placed on the OIG exclusion list.

arrest

If you are facing an OIG audit or investigation, you should immediately consult with an attorney experienced in handling those matters.  Retaining experienced counsel in the early stages of an OIG audit or investigation can be of great assistance in resolving the case without criminal charges or placement on the exclusion list.  Also, if you feel that your practice may be billing incorrectly for services, you should speak with an expert to determine the method and manner of any necessary repayment to the federal government.

To read the full story from The Daily Sentinel, click here.

To view court records of the case, click here.

One Last Thing.

We cannot stress enough the importance of properly registering your address with Medicare. The consequences can be damning to your career. Medicare exclusion will not only directly impact your bottom line, but it will also limit your job eligibility.

Comments?

Have you ever run into an issue with your Medicare registered address? Did you know this was a surefire way to put yourself at risk? Please leave any thoughtful comments below.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in reversing termination of Medicare billing privileges, preparation of corrective action plans (CAPs), requests for redetermination, hearings on Medicare terminations, Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

About the Author: Lance O. Leider is an attorney with 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 Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

“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 © 1996-2015 The Health Law Firm. All rights reserved.

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

The guest author of this article is Mark Rieber, Senior Attorney, National Legal Research Group.

In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth’s new medical marijuana law (“the Act”) in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth’s argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. “Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue.” Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant’s motion to suppress.

About the Author: The author of this is article is Mark Rieber, Senior Attorney with National Legal Research Group in Charlottesville, Virginia. This case summary originally appeared on The Lawletter Blog. It is republished here with permission.

This article was originally published in The Lawletter Vol 38, No. 1.

HIPAA Violations in Colorado Can Incur Serious Punishments

5571 darken lighten center w skin softBy Carole. C. Schriefer, R.N., J.D.

The Health Insurance Portability and Accountability Act (HIPAA) is a well known Federal regulation among Colorado health care professionals. However, did you know that not complying with HIPAA mandates can cost you thousands of dollars in fines? Did you know that non-compliance could land you behind bars? Health care professionals and facilities across Colorado should be aware of these legal provisions.

Don’t Become a White Collar Criminal.

In June 2005, the U.S. Department of Justice (DOJ) clarified who can be held criminally liable under HIPAA. Covered entities and specified individuals, who “knowingly” obtain or disclose individually identifiable health information in violation of the Administrative Simplification Regulations face a fine of up to $50,000, as well as imprisonment up to one year. Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five years in prison. Finally, offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain or malicious harm permit fines of $250,000, and imprisonment for up to 10 years.

HIPAA Violations Can Cost Big Bucks.

The “American Recovery and Reinvestment Act of 2009”(ARRA), that was signed into law in 2009, establishes a tiered civil penalty for HIPAA violations. The Secretary of the Department of Health and Human Services (DHHS) still has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation. However, the Secretary is still prohibited from imposing civil penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended).

The following outlines the ARRA tiered civil penalty structure for HIPAA violations:

TIER 1

Violation:
Individual did not know that he/she violated HIPAA and by exercising reasonable diligence, would not have known.
Minimum Penalty: $100 per violation, with an annual maximum of
$25,000 for repeat violations. Note: This is the maximum penalty that can be imposed by the State Attorney General regardless of the violation.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 2
Violation:
HIPAA violation due to reasonable cause and not due to  willful neglect.
Minimum Penalty: $1,000 per violation, with an annual maximum of $100,000 for repeat violations.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 3
Violation:
HIPAA violation due to willfull neglect but violation is corrected within the required time period.
Minimum Penalty: $10,000 per violation, with an annual maximum of $250,000 for repeat violations.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 4
Violation:
HIPAA violation due to willful neglect and is not corrected.
Minimum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

Who Is Responsible For HIPAA Violations?

The DOJ concluded that the criminal penalties for a violation of HIPAA are directly applicable to covered entities—including health plans, health care clearinghouses, health care providers who transmit claims in electronic form, and Medicare prescription drug card sponsors. Individuals such as directors, employees, or officers of the covered entity, where the covered entity is not an individual, may also be directly criminally liable under HIPAA in accordance with principles of “corporate criminal liability.” Where an individual of a covered entity is not directly liable under HIPAA, he/she can still be charged with conspiracy or aiding and abetting.

The Interpretation of “Knowingly.”

The DOJ interpreted the “knowingly” element of the HIPAA statute for criminal liability as requiring only knowledge of the actions that constitutes an offense. Specific knowledge of an action being in violation of the HIPAA statute is not required.

Consequences Include Medicare Penalties As Well.

DHHS has the authority to exclude a health care provider in violation of HIPAA laws from the Medicare Program and any covered entity that is not compliant with the transaction and code set standards by October 16, 2003 (68 Fed. Reg. 48805).

This is a powerful tool. Medicare exclusion can be a death sentence for a health care provider.

Who Carries The Big Stick Enforcing HIPAA?

The HHS Office for Civil Rights (OCR) enforces the privacy standards, while the Centers for Medicare & Medicaid Services (CMS) enforce both the transaction and code set standards and the security standards (65 Fed. Reg. 18895). Enforcement of the civil monetary provisions has not yet been tasked to an agency.

For more information on enforcement of the privacy standards, click here.

Comments?

Have you ever received discipline for a HIPAA violation? Do these penalties seem harsh to you? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (970) 416-7456.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Denver, Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

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 © 1996-2014 The Health Law Firm. All rights reserved.

In Colorado, Are Threatening Statements Protected by Psychologist-Patient Privilege?

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm

Mental health providers and patients share a sacred bond. But is that sensitive relationship tarnished when a doctor testifies against patients?

That was the question posed to the Colorado Supreme Court in People v. Kailey. The state’s high court had to decide if a patient makes threatening statements during a therapy session, and the doctor reports these statements, can the doctor’s testimony against a patient be used in court?

Click here to read the entire case.

Case Background.

Randy Kailey was serving a 32-year sentence at a correctional facility in Colorado when he met with Brian Willson for a therapy session. Willson was a psychologist candidate working for the Colorado Department of Corrections (DOC). During the session, Kailey allegedly spoke threateningly about witnesses who testified against him during his trial. Willson considered these statements to constitute serious threats of violence.

According to Willson’s duty to warn, he submitted an incident report to the Colorado DOC. Based on that report and testimony from Willson, the State of Colorado charged Kailey with retaliation against a witness.

Kailey moved to exclude the doctor’s testimony, contending that Kailey’s statements should be protected by the psychologist-patient privilege. After a hearing, a trial court sided with Kailey, ruling that even after a mental health provider notifies law enforcement about the threatening statements, those statements remain privileged.

Colorado Supreme Court’s Dilemma.

All jurisdictions acknowledge some form of the duty to warn. However, there are disagreements in various jurisdictions over whether mental health providers can testify on threatening statements made by their patients when these statements have already been disclosed.

In the case discussed above, Willson’s testimony was critical to the prosecutor’s case. The suppression of evidence due to the psychologist-patient privilege would have significantly impeded Colorado’s ability to prosecute Kailey.

Colorado Supreme Court Decision.

In the end, the Colorado Supreme Court held that if a mental health provider believes that statements made by a patient during a therapy session threaten imminent physical violence against a specific person, and thus triggering the provider’s legal duty to warn, the patient’s threatening statements are not protected by the psychologist-patient privilege. Consequently, the Colorado Supreme Court held that the trial court erred when it excluded threatening statements made by Kailey to Willson on the grounds that the statements were protected by the psychologist-patient privilege.

FYI on Psychologist-Patient Privilege.

Psychologist-patient privilege is a privilege whereby a person can prevent the disclosure of a confidential communication made in the course of diagnosis or treatment of a mental or emotional condition by or at the direction of a psychologist. The requirements of this privilege are:

1. The communications must be confidential;
2. The therapist must be a licensed psychologists; and
3. The communications must occur in the course of diagnosis or treatment.

Almost all the states in the United States have specific laws on psychologists-patient privilege. The state laws vary with regard to the types of therapy relationships protected and the exceptions recognized. The privilege can be overcome under certain conditions, such as when the examination is ordered by a court. Be sure to consult with your own state for its specific statutes on the psychologist-patient privilege. If you have any question be sure to contact an experienced health law attorney.

Comments?

Do you agree or disagree with the Colorado Supreme Court’s ruling? Please explain your opinion.

Contact A Lawyer Experienced in the Representation of Psychiatrists, Mental Health Counselors, Social Workers, Licensed Marriage and Family Therapists and Other Mental Health Professionals.

We routinely provide deposition coverage to psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental 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 psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental health professionals in investigations at the Board of Medicine, Board of Psychology, or the Board of Clinical Social, Marriage and Family, and Mental Health Counseling. Call (970) 416-7456 now or visit our website www.TheHealthLawFirm.com.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

“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 © 1996-2014 The Health Law Firm. All rights reserved.