Harvard Med School Morgue Director Allegedly Sold Body Parts, Class Action Claims

Author headshot standing in dark suit with red tie against a dark grey backgroundBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a morbid but extremely popular class action lawsuit filed on June 16, 2023, illegal body parts sales was alleged. The lawsuit against Harvard University contained allegations that its morgue manager was selling body parts from 350-400 donated cadavers. Many donors have now requested their bodies back.

Family members of the deceased had voluntarily donated the cadavers to the prestigious institution to further the medical and scientific study of the human body.

Massachusetts state law recognizes that human beings are entitled to be treated with decency and digital after death, which includes the bodies not being mishandled, viewed, dismembered, or sold by those entrusted with them. The previous morgue manager allegedly violated this law and countless other state, federal, and international laws and treaties. State and federal law prohibits the sale of body parts, often referred to as anatomical donations. These laws have been derived from international laws and conventions that prohibit such conduct, mostly written and agreed to as a result of the Nazi atrocities of World War II.

The Class Action Lawsuit.

The manager allegedly allowed unauthorized third-party members to view the cadavers in the morgue and select which body parts they wanted to purchase. The lawsuit did not state what times and days the store was open. However, once the order was placed, the morgue manager would unlawfully dissect and sell the body parts in person and online. Additionally, the defendant would allegedly ship the body parts to various locations in the United States on demand. Officials believe that this scheme occurred from at least 2018 until March 2023. During that time, the entrepreneurial morgue manager is suspected of having done his dastardly deeds to 350 to 400 separate cadavers.

The lawsuit did not reveal what the purchasers used the body parts for. However, this is expected to come out in discovery.

The class action lawsuit claims negligence and breach of care for the morgue manager and Harvard. According to the suit, the class is defined as: “all individuals whose family members donated their bodies to Harvard and Harvard Medical School for medical research and academic study and whose cadavers were mishandled, dissected, and/or sold by the morgue manager.”

The suit claims that Harvard breached its fiduciary duty of care by allowing the cadavers to be mishandled, dissected, and sold. The negligence claim focuses on the university not taking reasonable steps to ensure that the cadavers were appropriately handled, maintained, and used for their intended purposes. The class claims that Harvard is liable for its employee’s actions because the morgue manager acted within his scope of duty when he unlawfully dissected and sold body parts from the cadavers in the medical school’s onsite morgue.

This argument made in the lawsuit seems somewhat internally inconsistent. It does not seem logical that it could have possibly been within the morgue manager’s scope of duty to act illegally. One cannot have a contract that has for its purpose carrying out an illegal act. Otherwise, I would like to see a copy of that job description (it obviously would not have been written by a Harvard lawyer)!

Massachusetts law imposes a statutory duty to preserve the rights and dignity of a deceased person’s body when a medical school takes custody for scientific and academic purposes, which is another basis for the negligence claims by the class. The plaintiffs are also claiming negligent infliction of emotional distress from both Harvard and the morgue manager since Massachusetts recognizes emotional distress in situations of knowing that the remains of a deceased family member have not been preserved as the family desired.

Harvard will undoubtedly defend itself by arguing that the acts of the errant morgue manager were intentional torts and illegal acts outside of his scope of duties. The doctrine of caveat emptor, by which an employer is held vicariously liable of the negligent acts of its employee, does not apply to intentional torts.

The plaintiffs are requesting a decision from the court stating that both Harvard and the morgue manager are liable for negligence, that the class is awarded damages for the emotional distress, and that the defendants are enjoined from continuing their unlawful practices.

Click here to visit our website and read the complaint in full (but don’t expect to be able to fall asleep after you do!)

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

The Health Law Firm provides legal services for all healthcare providers and professionals. This includes scientists, pathologists, morgue directors (technically not usually licensed health professionals), clinical professors, medical researchers, clinical investigators, physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, fellows, medical school professors, and clinical staff. Our representation includes the defense of complex medical litigation. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex health litigation and both formal and informal administrative hearings. We also represent professionals accused of wrongdoing, patient complaints, and in audits and investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Dowling, Brian. “Harvard Sued Over Morgue Director’s Alleged Body Part Sales.” Law360. (June 16, 2023). Web.

Levenson, Michael. “Harvard Medical School Morgue Manager Sold Body Parts, U.S. Says.” The New York Times. (June 14, 2023). 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 Avenue, Suite 1000, Altamonte Springs, FL 32714. Phone: (407) 331-6620; Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: KBrant@TheHealthLawFirm.com or fax them to (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.

 

By |2023-06-26T12:18:26-04:00September 13, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , |0 Comments
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United States Court of Appeals Denies U.S. Nursing Corporations Indemnification Challenge Against Nurse Staffing Agency

Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law, and Hartley Brooks, Law Clerk, The Health Law Firm
On May 18, 2023, the United States Court of Appeals for the Sixth Circuit affirmed a U.S. district court’s decision to deny U.S. Nursing Corporation a new trial. The appellate court stated that the opposing counsel’s closing argument and the erroneous preclusion of evidence had no substantial effect on the trial’s outcome; thus, there was no reversible error.
The First Lawsuit.
The original lawsuit filed in state court concerned a patient suing Appalachian Regional Healthcare, Inc., for exacerbating his spinal injury. He claimed that a nurse transported him from a car into the emergency room without first stabilizing and immobilizing him, which caused further damage. When the incident occurred, the nurses on staff were two employees of Appalachian Regional and one supplied by U.S. Nursing Corporation to the hospital.
 The court granted a motion that dismissed the Appalachian Regional nurses as defendants because no evidence in the record alleged that they moved the patient. As the trial neared, the court granted another motion prohibiting the parties from introducing evidence that the Appalachian Regional nurses moved the patient from the truck into the emergency room.
This earlier state court lawsuit concluded with Appalachian Regional Healthcare paying $2 million in settlement and incurring $823,522.71 in legal fees.
It is important to note that when U.S. Nursing supplied its nurse to Appalachian Regional, they entered into an agreement that stated U.S. Nursing would indemnify and defend Appalachian Regional for the negligence of any of its employees assigned to Appalachian Regional. The settlement was reached, Appalachian Regional Healthcare demanded that U.S. Nursing indemnify it, but the staffing company refused to do so. In response, Appalachian Regional Healthcare, Inc., sued U.S. Nursing for the $2,823,522.71 state court settlement it paid.
The First Appeal.
In its first appeal, U.S. Nursing argued that the opposing counsel made an inappropriate closing statement when they stated no evidence showed the Appalachian Regional Healthcare nurses moving the patient and that U.S. Nursing had not argued that such evidence existed. U.S. Nursing claimed this statement was inappropriate because it was prohibited from admitting evidence that showed Appalachian Regional Healthcare nurses having moved the patient. The appellate court decided that U.S. Nursing did not have a full and fair opportunity to litigate the issue, so the appellate court remanded to the district court to determine if the error required a new trial.
The nurse staffing company argued that it was incorrectly prohibited from introducing evidence regarding the other nurses on duty and the possibility that they could have been the ones to move the patient. U.S. Nursing also argued that the opposing counsel exploited the court’s error in their closing statements, though the district court never addressed this claim. However, the appellate court asserted that the evidence excluded would not have caused a different outcome at trial, so no new trial was granted.
The Second Appeal.
In its second appeal, U.S. Nursing argued that the district court abused its discretion when it determined the evidentiary error did not affect the trial. The Sixth Circuit Court of Appeals found that the excluded evidence did very little to support U.S. Nursing’s argument, and excluding this evidence did not affect U.S. Nursing’s substantial rights. However, the court stated that the opposing counsel misled the jury with their statements. The remarks did not constitute an error significant enough to warrant a new trial since Appalachian Regional Healthcare, Inc., was highly likely to prevail, despite counsel’s comments.
Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.
The Health Law Firm’s attorneys routinely represent nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings.
To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Source:
About the Authors: 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620; Toll-Free (888) 331-6620
Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: Kbrant@TheHealthLawFirm.com or fax them to (407) 331-3030.
“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 © 2023 George F. Indest III. All rights reserved.
By |2023-08-01T11:55:12-04:00September 1, 2023|Categories: Dental Law Blog, The Health Law Firm Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Florida Attorney Says AHCA Must Put Medicaid Final Orders Online

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

Florida’s Agency for Health Care Administration (AHCA) has come under fire for failing to make Medicaid final orders accessible to the public. On April 11, 2023, an attorney asked a Florida appeals court to revive her suit against AHCA, trying to force AHCA into compliance with state public records laws.

Attorney Nancy Wright says the AHCA orders fall under a state law that requires all proceedings determined by a state agency to be placed into a centralized electronic database accessible to the public. This would allow citizens and healthcare providers more accessible access to those decisions and transparency when understanding Medicaid policies and decisions made by AHCA.

Access to Medicaid Final Orders.

The plaintiff’s attorney argued before a three-judge panel of the court of appeal that she should not be required to pay hundreds of dollars to gain access to Medicaid final orders to prepare for clients’ Medicaid hearings when the law requires the agency to publish these. The attorney further argued that this fee was an unfair and unjustified barrier to justice and that she should be given free access to these orders to ensure that she could provide the best possible representation for her clients.

More Details of the Case.

The Florida Health Justice Project and the National Health Law Program filed the lawsuit against AHCA on behalf of Wright in December 2020 in the First District Court of Appeal of Florida.
“[Medicaid law’s] notorious complexity and rapid regulatory changes put even lawyers on edge,” she said in a statement at the time she filed her suit. “AHCA’s unwillingness to make their [sic] final orders accessible means that I am not able to fully advise my clients on how and why decisions on services are being made. For the many enrollees who are unrepresented, this lack of transparency makes a complicated system almost impossible to navigate.”

Click here to view the press release from The Florida Health Justice Project.

However, the trial court sided with AHCA and granted summary judgment to the agency.

The Appeal.

The Elder Law Section of the Florida Bar expressed their support for Wright and submitted an amicus brief on appeal. They highlighted that the Florida Department of Children and Families regulates Medicaid eligibility proceedings with the same law that provides authority to AHCA. Furthermore, the Department publishes its final orders in an electronic database, making them readily available to the public.

However, accessing these same orders on Medicaid coverage requires a public records request which can be costly and time-consuming. The Elder Law Section argued in its brief that this disparity is unfair as it burdens those attempting to gain access to said records. The brief further suggested that upholding the trial court’s summary judgment would only perpetuate this inequality of access to public records.

To learn more, read the complaint in full here.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations, and other Legal Proceedings

Physicians, therapists, counselors and other health professionals who accept Medicaid are routinely audited by the Medicaid Program to detect any overpayments or fraudulent claims. Medicaid fraud is a serious crime and is vigorously investigated by the state Medicaid Fraud Control Unit (MFCU), the Agency for Healthcare Administration (AHCA), Program Integrity Contractors (PICs), the FBI, and the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies may also participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, mental health counselors, therapists, home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or toll free at (888) 331-6620 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., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.

By |2023-05-23T14:43:57-04:00July 19, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Owner of Psychiatry Practice Pays Hefty Settlement in FCA Case for Employing Doc on OIG Exclusion List

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

On February 23, 2022, a psychiatric practice and its owner agreed to pay $310,874 to resolve allegations they improperly hired and employed a physician who was excluded from federal healthcare programs. The physician who was hired was on the OIG’s exclusion list, the “List of Excluded Individuals and Entities” (LEIE). As a result, the government took the position that claims for services the physician provided filed against government programs were illegal pursuant to the false Claims Act (FCA). Details were disclosed in a Press Release by the U.S. Attorney for the District of Connecticut.

Geriatric & Adult Psychiatry, LLC (GAP), along with the owner, entered into a civil settlement agreement to resolve their liability under the federal and state False Claims Acts, the U.S. Department of Justice (DOJ) said in a press release.

Past Conviction Overlooked.

In 2006, the physician had been convicted in the Southern District of Florida of conspiracy to commit healthcare fraud. Because of his conviction, the Office of the Inspector General (OIG) excluded him from all federal healthcare programs. Such an exclusion includes Medicare, Medicaid, Tricare, Veterans Administration (V.A.), and Indian Health Service (I.H.S.) programs.

When the OIG excludes an individual or entity from federal health care programs, no payments may be made for items or services furnished by that excluded individual. Additionally, the law prohibits any person or organization that receives such funds from employing or contracting with a person on the LEIE, in any way. To avoid potential liability, it advised that health care providers check the List of Excluded Individuals/Entities (LEIE) on the OIG website: http://oig.hhs.gov/exclusions.

In addition, the OIG has issued a Special Advisory Bulletin to providers who might employ or contract with an excluded individual or entity to provide guidance. To review this OIG Bulletin, click here.

For more helpful information, click here.

Despite this, to medical group hired the former physician as the clinical director in 2016 where he served in that position until 2021. During that time, both the practice and its owner billed and sought reimbursements from Medicare, Medicaid, TRICARE, and the Railroad Retirement Medicare Program. Additionally, GAP’s reimbursements were used to pay the physician’s salary and benefits.

Payment Prohibition & Civil Monetary Penalties (CMPs).

Health care providers receiving funds from federal health care programs must check to see if potential employees and contractors are excluded by searching the LEIE to ensure that person is not listed. Providers have mistakenly assumed that exclusion does not apply to an individual or entity that provides services that extend beyond direct patient care; this is wrong. Payment prohibition extends to anyone who chooses to employ or contract with an excluded individual or entity in any capacity. Providers who violate this prohibition are required to pay back all federal health care program funds inappropriately received and may also be subject to civil monetary penalties (CMPs) and action under the False Claims Act (FCA).

Furthermore, payment of an excluded individual’s salary, benefits, or expenses, directly linked to federal health care program funds is expressly prohibited. Click here to read my prior blog and learn more about this.

Little Known Fact: You Must Actively Apply to Get Taken Off the LEIE.

A little-known fact, often overlooked, is that a person or entity on the LEIE must actually apply to be removed from it, no matter how short the period of exclusion. Thus if a person is excluded and placed on the LEIE for only two years, they must apply to the OIG after that period of time, completing its detailed, notarized application, and be removed from the list. Removal is not automatic.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

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 Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Yankowski, Peter. “Officials: Hamden psychiatric practice to pay $310,000 settlement over employee who lost medical license.” Stamford Advocate. (February 23, 2022). Web.

Health Law Weekly. “Psychiatric Practice, Owner Pay $310K for Employing “Excluded” Individual.”American Health Law Association (AHLA). (February 25, 2022). 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 Avenue, Suite 1000, Altamonte Springs, FL 32714; Phone: (407) 331-6620; Toll-Free: (888) 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 © 2022. The Health Law Firm. All rights reserved.

 

 

By |2023-06-14T20:02:02-04:00June 16, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Supreme Court Says FCA Case Liability Requires Defendants’ Subjective Belief

Author and attorney headshot leaning with hands folded in frontBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On June 1, 2023, the Supreme Court handed down an opinion on the knowledge standard required in False Claims Act (FCA) cases in a precedential decision that leaves the whistleblower plaintiffs bar reeling. In a unanimous ruling, the high court said liability of defendants in FCA cases would be based on their own belief in the falsity of their claims, rather than an “objectively reasonable” interpretation of the law or regulation. This appears to set the age-old maxim of “ignorance of the law is no excuse” on its head. Now, apparently, a defendant can argue that he, she or it was ignorant of the law and win.

The case before the Supreme Court was consolidated from two lower court decisions in the cases United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway.

When Subjective Belief is Relevant in FCA Cases.

In the cases which the Supreme Court decided, the whistleblowers accused SuperValu and Safeway of violating the FCA by overcharging Medicare, Medicaid, and the Federal Employee Health Benefits Program for prescription drugs.

According to the rules of these programs, pharmacies cannot charge the government more than the “usual and customary” price for a drug, which is the cash price charged to the general public. The plaintiffs claimed that the pharmacies overbilled the government when they started offering discounted prices to consumers under a price-match program to compete with other pharmacies. They also offered a membership discount program but did not adjust their “usual and customary” prices, continuing to charge the government more than they should have.

The Lower Court’s Ruling.

The Seventh Circuit Court of Appeals ruled in April 2022, that the pharmacies had submitted false claims by not reporting their discounted prices, which were the “usual and customary” prices. The appeals court also stated that the retailers had made reasonable interpretations of ambiguous laws without being warned against it by authoritative guidance. The circuit court referred to the Safeco standard from the Supreme Court’s 2007 Safeco Insurance Co. of America v. Burr case in its decision.

Click here to learn more about the Seventh Circuit Court of Appeal’s ruling.

The Supreme Court’s Ruling.

The Seventh Circuit’s perspective was rejected by the Supreme Court, which instead focused on the defendant’s intentions when submitting false claims. Justice Clarence Thomas, writing for a unanimous court stated, “What matters for an FCA case is whether the defendant knew the claim was false. Thus, if [the defendants] correctly interpreted the relevant phrase and believed their claims were false, they could have known their claims were false.” Read the opinion in full here.

Under this rationale, a defendant could successfully make the argument, “I didn’t know the claim was false and I never bothered to do anything to make sure of that fact.” Even objectively unreasonable claims, such as charging a million dollars for a drug which only cost one dollar, could be successfully defended.

Contact Health Law Attorneys Experienced in Handling Health Care Fraud Investigations and other Legal Proceedings.

The Health Law Firm represents healthcare providers in Medicare and Medicaid audits, and in RAC audits throughout Florida and across the U.S. We also represent health providers in civil and administrative litigation by government agencies and insurance companies attempting to recoup claims that have been paid.

The Health Law Firm’s attorneys routinely represent physicians, dentists, pharmacists, psychotherapists, medical groups, clinics, pharmacies, assisted living facilities (ALFs), home health agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Elberg, Jacob. “Supreme Court maintains focus on defendant’s subjective beliefs in False Claims Act cases.” SCOTUS Blog. (June 1, 2023). Web.

Wilson, Daniel. “Justices Say FCA Liability Hinges On Defendants’ Beliefs.” Law360. (June 1, 2023). Web.

Gaivin, Kathleen. “False Claims Act ruling by High Court a ‘clear win’ for government, expert says.” McKnights Senior Living. (June 2, 2023). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: PAlexander@TheHealthLawFirm.com or fax them to (407) 331-3030.

“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 © 2023. The Health Law Firm. All rights reserved.

By |2023-06-08T11:45:18-04:00June 8, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Medications and Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests (Part 1)

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In representing nurses and other licensed health professionals, we constantly discuss positive drug screenings, usually from employer-ordered drug testing, with our clients.  These clients include nurses, pharmacists, dental professionals, mental health counselors, therapists, etc.  Often these individuals need to remember that if they apply for a job with a new employer or are working for a large corporation or the government, they are subject to employer-ordered drug screenings.  Most problems arise when the professional has applied to a hospital or a placement agency for work in a hospital and they must submit to a pre-employment drug test.
The client often contends that the result is a false positive and that some other substance must be responsible for it.

A positive result for any drug for which you do not have a valid prescription from a physician, including marijuana, will cause you to be eliminated from consideration for a new job or terminated from a current position and a complaint against your professional license, which could cause you to lose it.  We are routinely called on to defend such situations.

Series of Blogs to Discuss Substances that Can Mimic Prohibited Drugs on Drug Tests.

In the years I have been doing this, I have encountered many cases in which other substances have caused a positive result for a prohibited substance on a drug screening test.

In this series of blogs, I intend to discuss some of the substances scientifically shown to cause false positives on employer-ordered drug screening tests.  This is the first in the series.

Over-the-Counter Medications Mimicking Amphetamines on Drug Tests.

Following is a discussion of substances that can cause a false positive for amphetamines on a urinalysis drug test.  This material comes from an article in Case Reports in Psychiatry published in 2013. (Ref. 1)
Many prescription pharmaceuticals and over-the-counter (OTC) medications have been previously reported in the literature to cause a false-positive result for amphetamines on urine drug screens. Many OTC medications have been reported in scientific literature to produce false positives for amphetamines on urine drug screenings, chiefly antihistamines.

The OTC medications that have been documented to and are well known as causing false positives for amphetamines on drug tests include nasal decongestants, Vicks inhaler, MDMA (3,4-Methylenedioxy methamphetamine;  commonly known as ecstacy, molly, mandy or X), and pseudoephedrine.  (Refs. 1-5)  Some of these are prohibited medications that cannot be prescribed and are only available as “street drugs” such as MDMA.

Prescription Medications Documented as Mimicking Amphetamines.

Prescription medications known to have mimicked amphetamines on testing include antipsychotics and antidepressants.  (Refs. 1 & 2)
The prescription medications known to cause false-positive amphetamine urine drug screen include fluoxetine, selegiline, ranitidine, trazodone, nefazodone, brompheniramine, phenylpropanolamine, chlorpromazine, promethazine, ephedrine, methamphetamine, and labetalol.  (Refs. 2-5)  However, the fact that the individual taking the drug test might have a prescription for one of these might cause the employer to disqualify the employee or potential employee from consideration for the job.
Bupropion (an atypical antidepressant that inhibits norepinephrine and dopamine re-uptake), is a drug used to treat depression and smoking cessation, but may also be used off-label to treat ADHD.  It has also been documented as causing false positive results for amphetamines on drug screenings.  (Ref. 6)
The drug atomoxetine has metabolites that are similar to those of amphetamines (phenylpropan-1-amine verses phenyl-propan-2-amine).  This could also result in a false positive on a urine drug screen.  (Ref. 1)

 

Other Discussions in Future Blogs.

In future blogs, I intend to discuss false positive claims associated with use of ibuprofen, amoxicillin, coca leaf tea, poppy seeds and other common substances and medications.  Stay tuned.

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 our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

References:

1. Fenderson JL, Stratton AN, Domingo JS, Matthews GO, Tan CD. Amphetamine positive urine toxicology screen secondary to atomoxetine. Case Rep Psychiatry. 2013;2013:381261. doi: 10.1155/2013/381261. Epub 2013 Jan 30. PMID: 23424703; PMCID: PMC3570929.
(Accessed on May 20, 2023.)
2. Brahm NC, Yeager LL, Fox MD, Farmer KC, Palmer TA. Commonly prescribed medications and potential false-positive urine drug screens. Am J Health Syst Pharm. 2010 Aug 15;67(16):1344-50. doi: 10.2146/ajhp090477. PMID: 20689123.
3. Vincent EC, Zebelman A, Goodwin C, Stephens MM. Clinical inquiries. What common substances can cause false positives on urine screens for drugs of abuse? J Fam Pract. 2006 Oct;55(10):893-4, 897. PMID: 17014756.
4. Rapuri SB, Ramaswamy S, Madaan V, Rasimas JJ, Krahn LE. ‘Weed’ out false-positive urine drug screens. Current Psychiatry. 2006;5(8):107–110. [Google Scholar]
5. Moeller KE, Lee KC, Kissack JC. Urine drug screening: practical guide for clinicians. Mayo Clin Proc. 2008 Jan;83(1):66-76. doi: 10.4065/83.1.66. Erratum in: Mayo Clin Proc. 2008 Jul;83(7):851. PMID: 18174009.
6. Reidy L, Walls HC, Steele BW. Crossreactivity of bupropion metabolite with enzyme-linked immunosorbent assays designed to detect amphetamine in urine. Ther Drug Monit. 2011 Jun;33(3):366-8. doi: 10.1097/FTD.0b013e3182126d08. PMID: 21436763.

 

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone:  (407) 331-6620 Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm.  The Health Law Firm always seeks qualified individuals interested in health law.  Its main office is in the Orlando, Florida, area.  If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: PAlexander@TheHealthLawFirm.com or fax them to (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.
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Medicare Revocation and the Collateral Damage It Can Cause Health Care Providers

Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Many healthcare professionals are unaware of the adverse long-term collateral effects of Medicare revocation or exclusion on their careers and future employment. However, if you are a physician, dentist, nurse, mental health counselor, psychologist, pharmacist, physician assistant, nurse practitioner, massage therapist, or other licensed health professional whose license is revoked or suspended, there may still be hope.

Lasting Consequences of Medicare Revocation. 
A revocation or exclusion from Medicare is often a severe consequence of license discipline on a professional license and can devastate a provider’s career. The Centers for Medicare & Medicaid Services (CMS) can revoke a healthcare provider’s agreement to participate in Medicare. When this occurs, their Medicare billing privileges are terminated.  Their legal authority to write prescriptions, referrals, or orders for tests paid by Medicare also vanishes.
Additionally, the exclusion can last for many years. This can be a career-ending move for many healthcare providers, especially physicians, as Medicare revocation is reported to the National Practitioner Databank (NPDB). In addition, it can potentially affect their opportunities to work in hospitals with other Medicare providers or on health insurance panels.
For this reason, healthcare providers need to retain a health law attorney with experience in licensing issues who can help them navigate the complex legal system Medicare presents. A skilled attorney can review the facts of the case, develop a strategy for defending the provider’s license, recommend actions to avoid or mitigate the damages and represent them in administrative hearings or proceedings in court. In some cases, an effective legal strategy may minimize the impact of discipline or even prevent Medicare revocation or exclusion. However, the best way to protect against license discipline and its consequences is to ensure that you are in compliance with Medicare standards, regulations, and procedures.
To learn more, read one of my prior blogs here.

Contact Experienced Health Law Attorneys in Healthcare Licensing Issues.

If you have had a license suspended or revoked, or you are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist in defending you.  Remember, your license is your livelihood. It is not recommended that you should not attempt to pursue these matters without the assistance of an experienced health care attorney. The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in Medicare issues and in defense of actions in personal and facility licensing actions.
To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hollender, Allison and Wortley, Mackenzie. “Collateral Consequences of Medicare Revocations.” AHLA. (March 9, 2021). Web.
Simas, Steven. “Collateral Consequence of Healthcare License Discipline – Medicare Exclusion.” SIMAS & Associates. (October 3, 2017). 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm.  The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.
By |2023-05-17T11:25:42-04:00May 17, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Former Dental Office Manager Sentenced to One Year in Prison for Defrauding Medicaid Out of More Than $813,000

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

On October 1, 2021, a former dental office manager was sentenced to 12 months in prison for her role in a Medicaid fraud scheme. The office manager for Universal Smiles, a D.C.-based dental practice was sentenced for her guilt in bilking Medicaid, according to the U.S. attorney’s office for D.C.

The office manager was indicted in January 2019, along with the dentist who ran the practice. The office manager pleaded guilty in May 2021 in the U.S. District Court for the District of Columbia and admitted she received over $813,000 through false billings.

The Fraudulent Billing Scheme.

Through the dental practice, she and the dentist allegedly both participated to defraud the D.C. Medicaid Program. As part of the scheme, both the dentist and the office manager allegedly billed Medicaid for thousands of provisional crowns, a significant number of which were not provided to the patients. From August 9, 2012, through February 26, 2014, D.C. Medicaid paid Universal Smiles approximately $5.4 million. Of that amount, the office manager allegedly received approximately $813,184.

The amount paid by Medicaid to the dental practice, $5.4 million for an 18 month period, should have raised red flags for anyone seeing it. Apparently, it did. And for an office manager of a dental practice to receive $813,000 for an 18 month period, ditto.

As part of the sentence, the office manager has been ordered to pay back the full amount she received from Medicaid. She will also serve three years of supervised release following the completion of her one-year prison term.

Click here to read the press release by the Department of Justice (DOJ) and learn more.

To read about a similar case that also deals with a healthcare professional, click here to read my prior blog.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits and Investigations of Dentists and Healthcare Professionals.

The attorneys of The Health Law Firm provide legal representation to dentists, dental hygienists, physicians, nurses, nurse practitioners, CRNAs, pharmacists, psychologists, and other health providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Martin, Colleen. “Rockville Woman Defrauded Medicaid At Dental Office: US Attorney.” Patch. (October 4, 2021). Web.

Bethesda Beat Staff Reporter. “Rockville woman to serve prison term over D.C. Medicaid fraud.” Bethesda Magazine. (October 4, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620. Toll-Free: (888) 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 © 2022 The Health Law Firm. All rights reserved.

By |2023-05-10T20:02:02-04:00May 12, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Humana Agrees To Pay $11.2 Million to End Nurses’ Overtime Suit

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

On September 27, 2021, Humana agreed to pay $11.2 million to end claims that the health insurance company denied a group of nurses overtime pay by misclassifying them as exempt employees. A Wisconsin federal judge approved the deal with Humana, and a group of more than 200 nurses reached, securing a $36,000 average payment for each nurse involved in the suit.

A Violation of the Fair Labor Standards Act (FLSA).

This dispute stems from a class-action lawsuit filed in 2017 alleging that Humana misclassified its clinical nurse advisers as exempt employees and denied them overtime compensation, violating the Fair Labor Standards Act.  Many professionals and supervisors or managerial employees are considered to be exempt from overtime laws.

In the suit, the company faced allegations from nurses who claimed they were never paid for overtime even though they were required to work more than 40 hours per week to meet Humana’s production goals and expectations.

The Settlement.

The settlement agreement will allocate almost $3 million to cover attorney fees and costs. Additionally, the 221 nurses that are part of the settling class will get nearly $8 million based on the number of full-time weeks the nurses worked. According to the motion, the average payment per nurse for unpaid overtime and liquidated damages will be over $36,000.

The case is O’Leary v. Humana Insurance Co., et al., case number 17-cv-1774, in the U.S. District Court for the Eastern District of Wisconsin. Click here to view the court’s brief in full.

To read about another case dealing with alleged pay discrimination in the healthcare field, click here to read one of my prior blogs.

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

The Health Law Firm’s attorneys routinely provide legal representation to nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Spezzemonte, Irene. “Humana To Pay $11.2M To End Nurses’ Misclassification Suit.” Law360. (September 27, 2021). Web.

Webster, Katherine. “Court OKs $11.2M Overtime Settlement Between Humana, Nurses.” Top Class Actions. (September 30, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 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 © 2021 The Health Law

 

By |2023-05-08T20:02:42-04:00May 10, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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From the archives: CMS Using Medicare Termination to Squash Doctors Involved in Overprescribing Opioids

Previously published on February 11, 2022
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Recently it has come to our attention that there may be a nationwide effort by the Centers for Medicare and Medicaid Services (CMS) Medicare Administrative Contractors (MACs) to squelch physicians who prescribe opioids and other narcotic medications. We have seen letters sent out by CMS MACs to physicians notifying them that their Medicare program billing privileges have been terminated because CMS has identified them as a provider who is overprescribing.


Nationwide Effort to Run “Pill Mills” Out of Business.

We are well aware of efforts by the various law enforcement authorities at the state and federal level to prosecute and put out of business physicians identified as “pill mills” and the pharmacies that fill their prescriptions.  These include surprise audits and inspections, followed by administrative actions or criminal prosecutions, by the Drug Enforcement Administration (DEA), the state Attorney General’s Office, the Department of Health, statewide task forces, and local sheriff’s offices and police departments.

However, this new heavy-handed tactic hits physicians in the pocketbook. It takes advantage of an arcanely-complex system of administrative appeals that is heavily weighted in favor of the government.

If You Receive a Letter from CMS Regarding Termination of Your Medicare Billing Privileges, Act Immediately.

Do not hesitate or wait if you receive a letter notifying you that CMS is terminating your billing privileges. You must get an experienced health care attorney to represent you right away and appeal the decision through a “request for reconsideration.”  You must also ask that the termination not go into effect while the appeal is pending and provide reasons why it should not.  Often you only have a few days to do this.

In Truth, There May Be No Oversprescribing.

In one recent case, we represented a physician who received such a letter stating she was terminated from Medicare. She was not a pain management physician, and she had over 2,000 patients. She only prescribed a handful (literally, less than ten) of these patients opioids, but the medical necessity was present and well-documented. However, because Medicare was aware of the prescriptions, it terminated her because it was paying for them.

Consequences of a Medicare Privileges Termination.

There are many, many seriously adverse consequences of a termination of Medicare privileges. Often we refer to this as a “death sentence.” It could be the death of your medical practice and possibly your medical career.

Consequences include:

1.    A waiting period of ten (10) years before you can even reapply.

2.    Placement on the OIG’s List of Excluded Individuals and Entities (LEIE).

3.    Having to notify hospitals and other health facilities where you are on the staff so that your medical staff privileges can be terminated.

4.    Being terminated from your state’s Medicaid Program.

5.    Being placed on the exclusion list for all federal contracts and contractors.

6.    Being terminated from the provider panels of all health insurers.

7.    Being excluded from any job or any position, including contractor or subcontractor for any organization that receives and government funding.

8.    Possible loss of medical license or non-renewal of medical license because of #1, #2 and #4 above (in most states).

 

Act Fast; Don’t Delay!

Act fast if you receive such a letter. Do not delay.  Retain the services of a health lawyer experienced in Medicare appeals and federal administrative hearings.

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

The lawyers of The Health Law Firm routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicare and Medicaid investigations, audits and recovery actions. They also represent them in preparing and submitting corrective action plans (CAPs), requests for reconsideration, and appeal hearings, including Medicare administrative hearings before an administrative law judge. Attorneys of The Health Law Firm represent health providers in actions initiated by the Medicaid Fraud Control Units (MFCUs), in False Claims Act cases, in actions initiated by the state to exclude or terminate from the Medicaid Program or by the HHS OIG to exclude from the Medicare Program.

Call now at (407) 331-6620 or Toll-Free (888) 331-6620 or visit our website 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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 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 © 2022 The Health Law Firm. All rights reserved.

By |2023-05-06T20:00:17-04:00May 8, 2023|Categories: Dental Law Blog, Health Facilities Law Blog, Marijuana Law Blog, Massage Law Blog, Medical Education Law Blog|2 Comments
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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 © 2022 The Health Law Firm. All rights reserved.
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