Colorado Health Law Blog

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Questions and Answers about Complaints and Disciplinary Actions for Nurses, Physicians, Pharmacists and Other Health Care Professionals Being Investigated by the Colorado Department of Regulatory Agencies (DORA), Division of Professions and Occupations

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

When a physician, pharmacist, nurse or other licensed health professional in Colorado has a complaint filed for professional negligence or other professional wrongdoing, it is investigated by the Colorado Department of Regulatory Agencies or “DORA.” This will usually come in the form of a letter to the subject of the investigation. We recommend that you immediately contact an attorney experienced in such health professional licensure matters, and not try to respond or handle it by yourself. In many cases, your professional liability insurance will pay for your legal representation, even for a licensure action.

Following are some frequently asked questions and answers about DORA investigations.

Q: What is a “basis” for disciplinary action?

A: Each profession has a practice act, also known as an organic act or statute. These practice acts contain laws that govern a particular profession. The legal grounds for disciplinary action against a particular type of professional are set forth in the applicable practice act.

Q: How does the disciplinary process begin?

A: The disciplinary process begins when a complaint is filed with the regulatory authority by any member of the public, or when a regulatory authority initiates a complaint on its own.

Q: What is a complaint?

A: In the context of a professional disciplinary action, a complaint is an allegation that a licensee, certificate holder or registrant has violated the laws set forth in the applicable practice act. It is filed with or initiated by the appropriate regulatory authority, and it marks the beginning of the disciplinary process against a licensee, certificate holder or registrant.

Q: What happens after the complaint is filed?

A: The regulatory authority or its staff will review the facts alleged in the complaint to determine whether, if proven to be true, these facts constitute reasonable cause to believe a violation of the practice act has occurred. If the initial review determines that the regulatory authority does not have jurisdiction or that the regulatory authority does not have reasonable cause to believe that a violation has occurred, the complaint will be dismissed, possibly with a confidential letter of concern to the licensee, certificate holder or registrant from the regulatory authority.
If the regulatory authority determines that it has reasonable cause to believe a violation of the practice act has occurred, a letter of admonition may be issued, the matter may be referred for disciplinary action, the action may be tabled to gather information, or a request may be submitted for a formal investigation with the Office of Investigations.

Q: What is the Office of Investigations?

A: Some complaints are investigated internally by the staff for a particular regulatory authority. However, the regulatory authority may also refer the complaint to the Office of Investigations, a program within the Division of Registrations, Department of Regulatory Agencies.

Q: If the complaint is forwarded to the Office of Investigations, do I receive notice?

A: You generally will receive a letter from the individual regulatory authority informing you that your complaint has been forwarded to the Office of Investigations. In some circumstances, however, the first contact you have regarding a complaint will be from the investigator assigned to handle the complaint.

Q: Do I need an attorney at this point?

A: A license, certificate or registration is an important property interest. It is important to remember that the regulatory authority, its staff, and the Office of Investigations cannot provide you with legal advice. You are not required to hire an attorney, but you have the right to be represented by an attorney at any stage of the proceeding. You are responsible for any costs associated with hiring an attorney. Your professional liability insurance carrier might provide assistance with legal costs associated with a professional disciplinary action.

Q: What happens in an investigation?

A: When a complaint is referred to the Office of Investigations, the assigned investigator acts as an impartial, fact-finding third party and does not “represent” the complainant, the regulatory authority, or the licensee, certificate holder or registrant. The Office of Investigations receives 500-600 cases a year. The average time to complete a case is 6 to 8 months depending on the complexity, witness cooperation and caseload of the investigator.
The investigator normally reviews the complaint and the response, subpoenas or otherwise obtains copies of pertinent documents or records, interviews witnesses and the licensee, certificate holder or registrant, and, where appropriate, retains an expert consultant to review the case. The investigator then prepares a written report that is reviewed by the regulatory authority, which will then determine whether to pursue disciplinary action. The investigator does not make any recommendations to the regulatory authority regarding what disciplinary action, if any, to take.

Q: How long does an investigation take?

A: The time frame to complete an investigation will vary. However, investigators try to process a complaint within 180 days of receipt of the complaint in the Office of Investigations. At times, the investigation of a case may take longer than 180 days. You may ask the investigator assigned to your case for an estimate of when the Report of Investigation will be prepared and presented to the regulatory authority.

Q: Do I get a copy of the Report of Investigation?

A: Generally, reports are not available to the public or to the licensee, certificate holder or registrant during the investigative stage of the proceeding or review process.

Q: Do I get notice of when the regulatory authority will review the Report of Investigation in my case?

A: This varies between programs. You may contact the regulatory authority or the investigator to inquire about the status of the investigation and the dates and locations of any meetings where the matter might be discussed. Some programs review Reports of Investigation in a closed meeting, which is not open to the public, including the licensee, certificate holder or registrant. Even if the disciplinary portion of the meeting is open to the public, generally you will not be permitted to address the regulatory authority and will only be allowed to listen to the discussion. Please check with the staff of your program.

Q: Can the public review government documents?

A: Regulatory authorities are governed by the Colorado Open Records Act, which provides the public access to certain government documents. Confidentiality requirements vary from program to program, and the investigator assigned to your case cannot advise you on this topic.

Q: What happens after the regulatory authority reviews the Report of Investigation?

A: If the regulatory authority finds that no violation occurred or that disciplinary action otherwise is not warranted, the case will be dismissed. If the regulatory authority finds that disciplinary action is not warranted, but that it has concerns about the conduct at issue, it may dismiss the case with a confidential letter of concern. If the regulatory authority finds that a violation occurred, it may impose discipline, including but not limited to a public letter of admonition, a probationary license, a suspension or a revocation. Disciplinary cases will be referred to the Office of Expedited Settlement (ESP) for settlement or the Office of the Attorney General (OAG) for formal prosecution of the matter.

Q: What happens when your case is referred to ESP?

A: If your case is referred to ESP, you will be contacted by a staff member from ESP who will provide you with the offer of settlement approved by the regulatory authority. Generally, if a settlement is not reached within 90 days, the matter will be referred to the Office of Attorney General (OAG).

Q: What happens if the case is referred to the OAG?

A: If your case is referred to the OAG, the assigned Assistant Attorney General will provide legal representation to the regulatory authority. The Assistant Attorney General may prepare formal charges based upon the alleged violations of the practice act. If formal charges are filed, a hearing will be conducted before an administrative law judge at the Office of Administrative Courts to determine whether the charges are proven. At the hearing, you would have the right to be represented by counsel, and would have the opportunity to present and confront oral and documentary evidence, and to testify in your own defense.

Q: What happens if, after the hearing, I am found to have committed a violation?

A: Following the hearing, the administrative law judge will issue an initial decision, which will include factual findings, conclusions of law and a recommended sanction. Either party may challenge the initial decision by filing exceptions with the regulatory authority. The regulatory authority will review the initial decision and issue a final agency order that may adopt, partially adopt or reverse the initial decision. If a violation of the practice act is established, the final agency order may impose sanctions, which can include a letter of admonition, a fine, continuing education, probation, suspension or revocation of your license, certificate or registration. You have the right to appeal the final agency order to the appropriate court.

Q: Is it possible to get a copy of disciplinary actions filed against a licensed professional or entity?

A: Yes. You can access any public disciplinary action document through our Online Services. To look up an licensee, registrant or certificate holder and learn if there are any public disciplinary action documents available, please visit Online Services License Lookup website: https://www.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in 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 and visit our website at 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.

Sources: The above information is mostly from the Colorado DORA website as of 8/17/2015.

Notice: This is the provision of general information only and does not constitute the provision of legal advice. Every case is different and every set of facts and circumstances is different. Consult a lawyer about your individual case.

“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.

By |2015-08-18T19:39:06+00:00May 15th, 2018|Colorado Health Law Blog|0 Comments

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.

Orlando City Council Vote to Extend Temporary Ban on Medical Marijuana Dispensaries

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 14, 2016, Orlando’s City Council voted to extend its temporary ban on new marijuana dispensaries, less than a week after Florida voters backed a constitutional amendment to expand medical use of the drug. Back in July 2016, city commissioners voted to approve the temporary pause on marijuana dispensaries. The current ban is set to expire December 2016, but the city is pursuing an extension that would stretch the ban until July 1, 2017.

The Temporary Ban.

According to the city, the temporary ban will be beneficial because it will allow staffers to study the potential impacts of marijuana distributors, including whether they should be kept at arm’s length from neighborhoods, churches and schools. After the Legislature in 2014 legalized the low-THC oil known as Charlotte’s Web, the city of Orlando determined its current rules would categorize dispensaries as drug stores, like Walgreens and CVS. The city of Orlando pursued the July 2016 moratorium after three potential sellers of either medicinal marijuana or Charlotte’s Web had expressed interest in Orlando storefronts where proper zoning would allow them. So far, several South Florida cities have also adopted similar temporary bans on new potential dispensaries. The Orlando City Council will take its final vote on the extension in December 2016.

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

Problematic Approach.

To me this is very problematic. The citizens of Florida have spoken in making medical marijuana legal. However, it seems likely that we will be burdened with government officials acting to try to prohibit retail sellers and dispensaries in an attempt to prevent it nevertheless. For example, what would happen if every county now voted to prohibit dispensaries within their boundaries. This would cut the legs out from under the constitutional amendment passed by the voters.

We may have to go back to the polls again and vote in a constitutional amendment that blocks cities, counties and state agencies from preventing sales within their limits. Either that or elect John Morgan governor!

Contact Experienced Health Law Attorneys for Medical 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:

Weiner, Jeff. “Orlando extends temporary ban on marijuana dispensaries.” Orlando Sentinel. (November 14, 2016). Web.

Weiner, Jeff. “City votes for pause on pot dispensaries.” Orlando Sentinel. (July 11, 2016). Web.

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

KeyWords: Medical and recreational marijuana use, legal counsel for medical marijuana, marijuana defense attorney, legal representation for medical marijuana growers and distributors, expanding marijuana industry, medical marijuana defense attorney, The Health Law Firm Reviews, lawyer for medical marijuana growers and distributors, health lawyers for marijuana distributors, medical marijuana lawyer, legal counsel for marijuana industry, approval of Florida’s Amendment 2, reviews of The Health Law Firm, The Health Law Firm attorney reviews, The Health Law Firm

The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., a Florida professional service corporation, since 1999, and is also a registered service mark.
Copyright © 2017 The Health Law Firm. All rights reserved

Legal Access to Marijuana Expands: California Legalizes Recreational Pot & Florida Legalizes Medical Marijuana

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

After looking at the red and blue map of America from the recent presidential election, it may be time to add some green. On November 9, 2016, the movement to legalize marijuana, which has been in the public eye for some time now, took a giant step forward. Voters in California voted to legalize the recreational use of marijuana. Voters in Florida, the third most populous state, overwhelmingly finally said yes to legalize medical marijuana use.

Expanding Legal Access to Marijuana.

Twenty-five states have already approved the use of medical marijuana and four states allowed recreational use. California, along with Massachusetts and Nevada approved the legalization of recreational pot use. Florida was joined by Arkansas, Montana and North Dakota in approving medical marijuana use.

Florida’s Amendment 2 passed with 71 percent of the vote. Those opposed to Amendment 2 feared that its passage would lead to pop-up dispensaries with little supervision. But supporters are convinced that it’s a necessary treatment for a wide variety of conditions from seizures to PTSD, addiction to opiates and cancer.
In 2014, the amendment got 57.6 percent of voter’s approval, just missing the 60 percent needed to pass.

Legalization Support.

According to national polls that were conducted, a solid majority of Americans support legalization of marijuana. Gallup’s latest survey for 2016 gauged support at 60 percent, up from 14 percent from when the question was first posed in 1969. Gallup says 13 percent of U.S. adults currently report using marijuana, nearly double the percentage who reported using pot in 2013. Click here to read the recent poll on marijuana support.

To learn more on the legalization of marijuana, click here to read one of my prior blogs.

Contact Experienced Health Law Attorneys for Medical 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:

Hale, Nathan. “Marijuana Ballots: Calif., Fla. Say Yes To Legal Pot.” Law360. (November 9, 2016). Web.

“Marijuana legalization: California, Nevada, Florida voters say yes but Arizona rejects.” Fox 5. (November 9, 2016). Web.

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

KeyWords: Medical and recreational marijuana use, legal counsel for medical marijuana, marijuana defense attorney, legal representation for medical marijuana growers and distributors, expanding marijuana industry, medical marijuana defense attorney, The Health Law Firm Reviews, lawyer for medical marijuana growers and distributors, health lawyers for marijuana distributors, legal counsel for marijuana industry, approval of Florida’s Amendment 2, reviews of The Health Law Firm, The Health Law Firm attorney reviews, The Health Law Firm

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

Copyright © 2017 The Health Law Firm. All rights reserved

Colorado Health Officials ‘Just Say No’ to Marijuana for PTSD Treatment

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

The Colorado Board of Health denied a motion to approve medical marijuana as a treatment for post-traumatic stress disorder (PTSD) on July 15, 2015. The rejection was made despite the recommendation of the state’s chief medical officer. This marks the third time that Colorado’s health officials have said ‘No’ to including PTSD on its medical marijuana approved uses list.

Is Marijuana Medicine?

The Colorado Board of Health voted 6-2 to reject a petition for PTSD to be included as a “debilitating condition” that can be treated with medical marijuana. Despite hearing testimony from several veterans pushing for approval, some board members believed that there was not enough scientific evidence to support this claim. To read this article in full from The Denver Post, click here.

To read a past blog on marijuana policy, click here.

Vote Yes.

According to The Denver Post, supporters of the proposal say that rather than focusing on the hard science, the needs of patients should also be considered. If it had been approved, it would have allowed physicians to recommend certain marijuana strains that provide relief without a ‘high’, according to Teri Robnett, director of the Cannabis Patients Alliance. Click here to go to their website and learn more about the Cannabis Patients Alliance.

Legal But With Limits.

Despite this recent rejection, Colorado has approved the use of marijuana for various health ailments. Colorado’s approved list of uses for medical marijuana currently includes muscle spasms, epilepsy, cancer, severe glaucoma and nausea. Currently, nine states allow physicians to recommend medical marijuana treatment for PTSD patients. To read a past blog on uses of medical marijuana, click here.

Comments?

Do you agree that PTSD should be excluded from the medical marijuana approval list? Do you approve of using medical marijuana as a treatment? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical 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:

Draper, Electa. “Colorado Board Voted No on Allowing Medical Marijuana for PTSD.” The Denver Post. (July 15, 2015). From: http://www.denverpost.com/news/ci_28487952/colorado-board-votes-no-allowing-medical-pot-ptsd

Gray, Eliza. “Colorado Health Board Votes ‘No’ on Treating PTSD With Marijuana.” Time. ( July 15, 2015). From: http://time.com/3960940/colorado-ptsd-marijuana/

Coffman, Keith. “Colorado Rejects Medical Marijuana for PTSD Treatment.” Reauters. ( July 18, 2015). From: http://www.reuters.com/article/2015/07/16/us-usa-colorado-marijuana-idUSKCN0PQ0CC20150716

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.

KeyWords: Colorado Board of Health, Colorado Marijuana law, Cannabis Patients Alliance, post-traumatic stress disorder, PTSD, medical marijuana for PTSD treatment, PTSD treatment, medical marijuana approval list, medical marijuana treatment, licensed medical marijuana user, medical marijuana defense attorney, marijuana lawyer health law, health care attorney, health care lawyer, medical cannabis, health law firm, The Health Law Firm

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“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.

By |2015-09-17T18:52:27+00:00May 15th, 2018|Colorado Health Law Blog|1 Comment

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.

After Backlash, Office of Compassionate Use Rewrites Florida’s Medical Marijuana Rules

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

The devil is in the details. This is why state regulators went back to the drawing board to revamp the framework for Florida’s medical marijuana industry. On September 9, 2014, the Florida Department of Health (DOH) Office of Compassionate Use published a revised ruling governing everything medical marijuana: from stems and seeds to prescribing to patients. The latest version addresses issues regarding ownership rules on who can apply to be a medical marijuana dispenser in Florida.

Click here to read the updated bill.

The Office of Compassionate Use has until January 1, 2015, to come up with a finalized version of regulatory framework for the medical marijuana industry.

Florida’s Current Law on Medical Marijuana.

On June 16, 2014, Florida Governor Rick Scott signed SB 1030 (Compassionate Medical Cannabis Act of 2014) into law, making it legal for qualified Florida patients to take low-THC cannabis in liquid form. The specific medical marijuana is approved to treat certain medical conditions such as epilepsy, muscle spasms and cancer. The low-THC medical marijuana is expected to be ready in Florida by spring 2015.

Medical Marijuana Dispensary Requirements and Changes.

Five dispensing organizations will be licensed to grow, process, and distribute the low-THC cannabis.

The law will require each dispensing organization to have a valid registration from the Department of Agriculture and Consumer Services to cultivate more than 400,000 plants, be operated by a “nurseryman,” and have previously operated as a registered nursery in Florida for at least 30 continuous years. These rules were drafted in order to encourage nurseries that meet these criteria to become growers of medical marijuana and discourage non-nursery companies from buying into and controlling the industry for profits.

The previous proposed rule neglected to specifically address whether a nursery would be required to have a continued role in running a dispensary. Under the recent revisions, a nurseryman has to serve as an operator of a dispensary. The revised proposal requires a nursery to have at least 25 percent ownership of a dispensing organization licensed by the state. The rule also states that a nurseryman who owns 100 percent of his business could also be the sole owner of a dispensary.

The revisions require a 21-day notification period. Then a legislative committee must certify the new rules and the DOH will have to adopt them, which is another 20-day process. If all dates hold, the process will be done on November 4, 2014.

I query why such ridiculous requirements are even being proposed. Is it an attempt to award certain individuals by creating a monopoly in certain areas? Requiring patients to travel great distances to one of only five dispensaries in the state also seems to be an irrational requirement.

What About the Disputed Lottery?

The revised rule states that the Office of Compassionate Use decided to stick with the plan to use a lottery system to select dispensing organizations, which the state will eventually license. Health officials believe the process will minimize drawn-out litigation over contract awards that could delay getting medical marijuana to patients.

To read more on the revised rule, click here to read an article from Health News Florida.

Work in Progress.

With all the questions raised by the legislation, it is clear this framework for Florida’s medical marijuana industry is still a work in progress. There is still a lot of red tape to go through to get a functional business model approved for dispensing businesses. While state health officials sort out many lingering details, physicians and dispensaries alike are speculating and preparing for Florida’s medical marijuana industry. Don’t go the unknown road alone. It’s in your best interested to contact an attorney if you plan to have a hand in any part of Florida’s medical marijuana industry.

Contact Experienced Health Law Attorneys for Medical 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 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Kam, Dara. “Regulators Take Another Shot at Pot Rule.” Health News Florida. (September 10, 2014). From: http://wusfnews.wusf.usf.edu/post/regulators-take-another-shot-pot-rule

Galka, Matt. “Revisions Being Made to Non-Euphoric Medical Marijuana Law.” News 4 Jax. (September 10, 2014). From: http://www.news4jax.com/news/revisions-being-made-to-noneuphoric-medical-marijuana-law/27987260

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.

“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 © 2017 The Health Law Firm. All rights reserved.

Florida Proposed Amendment: Telemedicine Exams Not Allowed for Medical Marijuana Doctor Order

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

On December 8, 2016, The Florida Board of Medicine issued a proposed amendment to its telemedicine regulations to clarify that physicians cannot order medical cannabis or low-THC cannabis through telemedicine. The regulation is in the preliminary stages and awaits further review

It’s been proposed that Florida residents seeking medical marijuana prescriptions will need to have an in-person examination first.

The Board originally issued the current telemedicine rules in the Spring of 2014. This amendment would add a new Section (5) to the Standards for Telemedicine Practice under 64B8-9.0141, F.A.C.

The regulation would state “(5) Medical cannabis, as defined by s. 381.986, F.S., may not be ordered by means of telemedicine” if the proposed amendment is finalized.

Florida law permits specified physicians to order low-THC cannabis or medical marijuana for patients diagnosed with certain conditions. The proposed telemedicine amendment comes from the overwhelming approval of Amendment 2 by Florida voter’s. The approval allowed for expanding access of medical marijuana in Florida.

Contact Experienced Health Law Attorneys for Medical 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.

Sources:

Lima, Debora. “Medical marijuana might be legal, but you won’t get a prescription this way.” South Florida Business Journal. (December 14, 2016). Web.

Ferrante, Thomas and Lacktman, Nathaniel. “Florida: No Telemedicine Exams for Medical Marijuana.” Lexology. (December 12, 2016).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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Florida telemedicine, proposed telemedicine amendment, Florida Board of Medicine, health law, The Standards for Telemedicine Practice, The Health Law Firm attorney reviews, Florida’s Amendment 2 approved, The Health Law Firm reviews, medical marijuana defense attorney, Board of Medicine defense lawyer, reviews of The Health Law Firm, access to medical marijuana in Florida, The Health Law Firm

“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 © 2017 The Health Law Firm. All rights reserved.

 

New Report Reveals Massive $2.4 Billion Marijuana Impact on Colorado Economy

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

On October 27, 2016, the Marijuana Policy Project issued a report for 2015 stating that the state-legal medical marijuana industry had a $2.4 billion economic impact on the Colorado economy. The cannabis industry, the fastest-growing business sector in Colorado, is credited with funding 18,005 direct and ancillary full-time jobs in 2015, according to the report. The Marijuana Policy Group (MPG) who issued the report, is a Denver-based economic and market research firm that consults with businesses and governments on marijuana policy.

What Does This Mean For the State of Colorado?

The size of the marijuana industry is quite substantial now and the world is taking notice. As a result, new jobs are being created and operating businesses are generating substantial revenue. However, in the coming years, the estimated growth rate will eventually slow to about 11.3 percent as visitor sales drop off as more states legalize, according to the report.

By 2020, Colorado’s marijuana industry is expected to surpass tobacco as the state’s largest excise revenue source, but cannabis sales also should reach a saturation point, MPG said. As such in Colorado, the cannabis industry generates more economic output and employment per dollar spent than 90 percent of other industries, according to MPG’s report.

Click here to read the MPG’s report in full.

Not All Positive News.

But there is a down side for the marijuana industry. As the marijuana industry in Colorado continues to grow, so will the problems that the industry will face on a day-to-day operating basis. Business owners in the marijuana industry can expect an increase of claims such as product liability claims, customer slip and fall claims, Americans with Disabilities Act (ADA) claims, shareholder lawsuits, and other types of problems that affect any large business. However, this is merely the cost of doing business and one of the prices for success in the U.S.

Be Prepared, Don’t Wait Until It’s Too Late.

Those involved in the marijuana industry, especially business owners, need to be prepared to ensure they are in a position to defend lawsuits like those mentioned above. Business owners should make sure they are adequately insured and hire legal professionals with experience in marijuana law to provide adequate advice on important issues.

To read more on the status of the marijuana industry and how The Health Law Firm can assist you, click here.

Contact Experienced Health Law Attorneys for Medical 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:

Levine, Steve. “Marijuana Industry has $2.4bn Economic Impact on Colorado.” AHLA Weekly. (October 27, 2016). Web.

Wallace, Alicia. “Report: Colorado weed is now a behemoth with a $2.4 billion economic impact.” (October 26, 2016). Web.

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

KeyWords: Growing marijuana industry in Colorado, Marijuana Policy Group (MPG) report, medical marijuana defense attorney, lawyer for medical marijuana growers and distributors, health lawyers for marijuana distributors, legal counsel for marijuana growers and distributors, medical marijuana laws, medical marijuana legalization, product liability claims defense attorney, customer slip and fall claims defense attorney, Americans with Disabilities Act (ADA) claims defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, The Health Law Firm

“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 © 2016 The Health Law Firm. All rights reserved.

By |2018-07-06T01:26:59+00:00May 15th, 2018|Colorado Health Law Blog|0 Comments

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.

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