Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

George Indest Headshot

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

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

 

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

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

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

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

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

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

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

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

 

Dentists Smiling as $80 Million Settlement Reached in Dental Supply Price-Fixing Class Action Suit

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

On August 30, 2018, after two years of litigation, a group of dentists tentatively reached an $80 million settlement in a proposed class action accusing the country’s biggest dental supply companies of colluding to fix prices. The three dominant distributors, Henry Schein Inc., Patterson Cos. Inc. and Benco Dental Supply Co. Inc., allegedly artificially inflated prices on crowns, numbing agents, X-ray accessories and other products.

Artificially Inflating Prices.

In 2016, the three distributors were accused of artificially inflating prices on various dental supplies and equipment. Products at issue included supplies such as adhesives, implants, tooth brushes, pins and posts all the way to equipment such as imaging devices and dental chairs. Although there are hundreds of distributors and manufacturers of dental supplies and equipment, the defendants controlled approximately 80% of the market share. Click here to read my prior blog on this case and learn more.

The $80 million settlement comes roughly 30 months after the dentists first launched their lawsuits against the manufacturers. To learn more, click here to view the consolidated class action complaint  and the order in full.

Collusion?

In response to the suit, the three distributors accused the group of dentists of inaccurately portraying isolated actions as a nationwide conspiracy. However, a New York federal judge found reason to believe the distributors colluded to strong-arm lower cost rivals and boycott trade groups that worked with a newer distributor called SourceOne Dental Inc.

Despite reaching the settlement, the distributors deny any wrongdoing even though the Federal Trade Commission (FTC) also filed an administrative complaint against them in February 2018. In the complaint, the FTC accused the nation’s three largest dental supply companies of conspiring to refuse to provide discounts to buying groups representing small dental practitioners in violation of antitrust laws. To view the FTC’s press release, click here. Click here to view the FTC’s complaint.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals.

The Health Law Firm has attorneys who practice in the area of antitrust law and trade regulation. We have defended a hospital in federal court against allegations of violations of the antitrust laws, we routinely provide advice and opinion letters on antitrust and trade regulation matters, we have represented plaintiffs in law suits alleging anticompetitive behavior and violations of state and federal antitrust laws, we have given opinions on and been involved in litigation concerning the Lanham Act and the Robinson-Patman Amendments, and we routinely undertake litigation concerning restrictive covenants.

The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We routinely provide advice and analysis of proposed business ventures that include the foregoing. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters.

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

Sources:

Overley, Jeff. “Dentists Get $80M From Supply Cos. To End Collusion Case.” Law360. (August 30, 2018). Web.

“Dentists Get $80M From Supply Cos. To End Collusion Case.” InfoTech Consulting. (September 5, 2018). Web.

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

KeyWords: dental class action suit, complex healthcare litigation attorneys, legal representation for antitrust violations, representation for antitrust investigations, complex medical litigation lawyer, representation for complex litigation, representation for healthcare business litigation matters, employment contract representation, representation for physician dentist employment contract, healthcare contract review attorney, restraint of trade legal representation, representation for Board of Dentistry matters, Board of Dentistry representation, dentist lawyer,  attorney for dentists, Board of Dental Examiners legal counsel, representation for Federal Trade Commission (FTC) investigations, dental law defense lawyer, representation for dental law, representation for health care professionals, representation for dental clinics, health law defense lawyer, health defense attorney, legal representation for dentists, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, board of dentistry defense attorney, dental board defense legal counsel, representation for dentists, dentist defense lawyer

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

NYC Doctor Gets Prison Term for Posing as Clinic Owner in $30 Million Fraud Scheme

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

On August 22, 2018, a doctor received a sentence of one year and a day in prison from a New York federal court for his part in a $30 million scheme to defraud Medicare and the state Medicaid program. The doctor admitted to posing as the owner of a medical clinic and falsely claiming to have seen hundreds of patients. He pled guilty on January 11, 2018, to health care fraud and conspiracy to commit health care fraud, mail fraud and wire fraud, the U.S. Attorney’s Office said.

Lies and Cover-ups.

The New York City doctor accepted responsibility for falsely posing as the owner of two medical clinics that were actually owned by a corrupt businessman, according to the U.S. Attorney’s Office for the Southern District of New York. Under New York state law, medical clinics must be owned and operated by a medical professional. The businessman was able to evade the requirements of the law by hiring doctors to pose as the owners of each clinic.

The corrupt businessman owned and operated six medical clinics in Brooklyn between 2007 and 2013 that fraudulently billed Medicare and Medicaid. Approximately $30 million was billed for services and supplies that were not provided, according to the indictment and other documents filed in federal court, as well as statements made during the doctor’s plea proceeding and sentencing.

Additionally, the doctor fabricated false medical records to support the fraudulent reimbursement claims and wrote prescriptions and referrals for medically unnecessary tests and supplies, the U.S. attorney’s office said.

The Punishment.

U.S. District Judge Lorna G. Schofield sentenced the doctor to three years of supervised release in addition to the prison term for his role in the scheme. He was also ordered to pay restitution of approximately $1.83 million and to forfeit $269,412 in unlawful gains. The three other defendants involved in this case, a doctor, a physical therapist and an occupational therapist, are scheduled to go to trial at a later date. Click here to learn more.

“The Medicare and Medicaid programs are intended to provide essential medical services to the elderly and the needy, not to enrich corrupt doctors and other fraudsters,” U.S. Attorney Geoffrey S. Berman said in a statement. “Today’s sentence sends a strong message that those who cheat Medicare and Medicaid, including physicians who abuse their licenses and professional oaths, will be held accountable.” You can view the U.S. Attorney’s press release here.

To read about a similar case of fraud, click here to read one of my prior blogs.

This is a Dangerous Pitfall of Which all Doctors and Dentists Must Be Aware.

This is the type of situation we often see in which a doctor or dentist is victimized by dishonest and corrupt scofflaws, especially here in Florida. Most often an older physician who is retired or semi-retired is asked to become the “medical director” or “dental director” of a clinic that is owned in whole or in part by someone else. The physician may not even know who its true owners are. Later the physician or dentist is asked to serve as the “president” or as a “director” of the company and his/her name is placed on all the corporate papers. The trouble really begins, however, when the true owner(s) places the physician’s or dentist’s name on corporate papers and licensing papers as an “owner,” “shareholder” or “member” of the business, when the physician has paid nothing for the business and is not truly the owner.

If a physician or dentist becomes aware of such a scheme and gets out of it as soon as she or her finds out, the physician or dentist may be able to avoid prosecution or liability. However, if the physician or dentist continues to do business with the true owners as an “owner on paper,” “shell owner,” or “sham owner,” (they all mean the same thing, “fraudulent owner”) then he or she can be in for some serious civil and criminal liability.

There can be serious criminal penalties, such as the one reported on in this blog. For example, in Florida, it is a felony for a non-dentist (meaning a dentist not licensed in Florida) to own or control a dental clinic in Florida. It is also a criminal offense for a layperson (or a business entity owned by lay persons), to own or control a medical clinic, unless it goes through the strict health care clinic license requirements that Florida law requires. If the clinic is owned or operated illegally (even if it’s “just on paper”), then all of the bills it issue are also illegal.

Contact Health Law Attorneys Experienced in Handling Medicare and Medicaid Fraud Cases.

The Health Law Firm’s attorneys 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.

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

Sources:

Hanson, Joyce. “Doc Gets Year In Prison For Role In $30M Medicare Fraud.” Law360. (August 22, 2018). Web.

“NYC Doctor Gets Prison Term for Role in $30M Fraud Scam.” Bloomberg Law. (August 22, 2018). Web.

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

KeyWords: Medicare and Medicaid fraud representation, false claims attorney, false claims representation, representation for overbilling, representation for DOJ investigations, fraud defense attorney, representation for medicare issues, representation for Medicaid issues, Medicare lawyer, Medicaid lawyer, health care fraud investigation representation, health care fraud defense representation, Medicare fraud representation, health care professional representation, representation for physicians, representation for physician reimbursement, licensure defense attorney, professional license representation, licensure defense representation, representation for health care professionals, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law defense lawyer, owner on paper, shell owner, or sham owner, paper owner, Florida dental clinic ownership, health care clinic license

“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 © 2018 The Health Law Firm. All rights reserved.

 

Board of Dentistry Considers Adding Failure to Provide Dental Records to “Citation” Offenses

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 21, 2014, it discussed a proposed change to Rule 64B5-13.0046, Florida Administrative Code. The amendment would add a provision for failing to timely produce dental records to patients. This addition should help dentists avoid receiving permanent discipline on their records for a minor technical violation.

Considered was the addition of the following language to the existing Rule, listing citation-approved offenses:

Violation of subsection 466.028(1)(n), F.S., failure to timely make available to a patient or client, or to his legal representative or to the Department, if authorized in writing by the patient, copies of documents in the possession or under control of the licensee, which relate to the patient or client. Timely means less than 30 days from the receipt of the written authorization. The subject of the citation has 10 days from the date the citation becomes a final order to release the patient records. Failure to comply will result in a $1,000.00 fine.


Citation vs. Charge
.

TIDCHAAn administrative citation such as those discussed is not considered to be discipline, but an alternative to discipline. The dentist can accept the citation and pay the fine; therefore the citation will not be recorded on his/her record as discipline. For more on this issue, read my blog on citations against physicians and other health professionals.

This is a good development for dentists as it allows the resolution of minor technical violations of statutes and rules without the very undesirable effect of creating a disciplinary record. We sometimes jokingly refer to these as “speeding tickets” since they carry a fine but are not considered to be permanent disciplinary action.

Carefully Review and Promptly Respond in Citation Cases.

Take immediately action on any proposed citation you receive from the Department of Health (DOH). Consult immediately with a health attorney who is experienced at representing dentists in Board of Dentistry matters. Click here for a previous blog on why you should speak with an attorney first.

In most cases, you will probably be advised to accept the citation and pay the fine. If so, be sure to submit the signed agreement, ending it by a method that documents sending and receipt (such as certified mail, return receipt requested), and keep a copy of all documents you submit. Make sure it is received (not sent) by the due date. Call to make sure it was received.

For additional information on citations in disciplinary cases, click here.

In Limited Circumstances, You May Not Want to Accept the Citation.

insurance policyIn limited circumstances, it may not be advisable to accept a citation. This may occur if there is pending litigation involving the subject of the citation. If the wrong person is named in the citation, this may be another reason for not accepting it. If you did not commit the offense and you are sure you can prove this, you may also desire to not accept the citation. This is especially true if you have dental liability insurance coverage which pays for a legal defense in such administrative disciplinary cases involving professional license defense.

For more information on dental license defense, read this previous blog.

If You Do Not Accept the Citation, Be Prepared for an Administrative Complaint.

If you do not accept the citation within the limited time given (usually 30 days), or if you send back a statement regarding why it is unfair or why you did not commit the violation, this will usually be treated as a statement disputing material facts. In this event, the case will be treated as though you were requesting a formal administrative hearing. You will be given a regular formal hearing (trial) with an administrative law judge from the Division of Administrative Hearings (DOAH). For information on hearings in dental cases, click here.

Be Sure Your Staff Knows How to Treat Record Requests.

Be sure that when your office receives a request for a patient’s dental chart that the request is promptly reviewed by someone in management. Management must make sure the authorization or subpoena is valid (remember HIPAA) and that the record is provided in a timely manner. Paying attention to such requests may allow you to detect and act on potential dental medical malpractice claims or DOH complaints. You should have a written office policy on this that every employee has signed.

Remember you are not authorized to withhold a patient’s dental record because the patient has not paid a bill. You are not authorized to withhold the chart because you are angry at the patient or the patient has threatened to sue you. Be sure to provide the patient (or his/her representative) a copy of the record within 30 days. Keep a copy of the letter transmitting the copy in the chart and annotate the HIPAA medical information disclosure form in the record.

Comments?

What do you think of a citation versus a charge in regard to promptly getting patients their dental records? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

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

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website http://www.TheHealthLawFirm.com.

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

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 © 1999-2015 The Health Law Firm. All rights reserved.

 

Administrative Final Orders Must State Findings of Fact Based on the Evidence Presented

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

Following is a summary of a recent appellate case on an issue relevant to health law:

Borges v. Dep’t of Health, 143 So. 3d 1185 (Fla. 3d DCA 2014).
Gustavo Borges (Borges) appealed a final order of the Florida Board of Dentistry that revoked his license to practice dentistry based on a conviction of the knowing receipt of child pornography under a federal statute.

At hearing, eight lay witnesses and four expert witnesses testified. In the recommended order’s discussion of the evidence presented, which was the basis for the Board’s final order, the administrative law judge (ALJ) discussed the testimony of only one witness-Borges-after concluding that a statement by Borges constituted a concession that established that his conviction was related to his ability to practice dentistry. No other testimony was discussed in the order, or even acknowledged.

On appeal, the appellate court concluded that the ALJ’s recommended order adopted by the Board did not comply with one of the requirements of section 120.57, Florida Statutes-that an ALJ’s order must contain “express findings of fact.” The court was quick to point out that, while the findings of fact did not have to address the testimony of every witness (i.e., all twelve here), the order must at least address the factual controversies at issue to the extent they are relevant to the disposition, or address why the testimony is irrelevant. Having failed to do so in this case, the appellate court reversed and remanded.

The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.

Editor’s Comments on Case Summary.

This case demonstrates an important concept in administrative law. This is, an administrative law judge is required to discuss the evidence presented at the hearing and make specific findings of fact based on that evidence. Failing to do this in the recommended order (RO) can lead to reversal by an appellate court.


Comments?

Do you think the appellate court should have reversed? Do you think it was important to discuss all testimonies in this case? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling Licensure Matters.

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

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

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


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

KeyWords: Criminal law, license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, conviction, desntist, dentist criminal charges, Department of Health, DOH, professional license, federal statutes, license disciplined, license revoked, health attorney, finding of guilt, adjudication withheld, diversion program, DOH conviction, adjudication, discipline, criminal trial, defense lawyer, ALJ, administrative law judge, administrative law, appellate court, administrative orders, Florida Board of Dentistry, Board of Dentistry, dentistry, statutes, testimony

“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.

Florida Board of Dentistry Proposes Change to Minimum Record Keeping Requirements for Dentists

By Christopher E. Brown, J.D., The Health Law Firm

On August 22, 2014, the Florida Board of Dentistry will meet to discuss implementing new requirements for record keeping. We believe that these changes are due to the Board’s concern over potential ambiguity with the current regulations, and due to the recent difficulty it had in disciplining Florida dentists for record keeping violations.

Read on for an outline of the proposed new requirements. Be sure to check this blog regularly. We will have a firm representative at this meeting and will post any updates.

Current Florida Rule.

Rule 64B5-17.002, Florida Administrative Code, provides the minimum record keeping requirements placed on Florida’s dentists. Currently, the rule requires a dentist to record the following information:

(a) Appropriate medical history;
(b) Results of clinical examination and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases;
(c) Any radiographs used for the diagnosis or treatment of the patient;
(d) Treatment plan proposed by the dentist; and
(e) Treatment rendered to the patient.

Outline of Proposed New Requirements.

The proposed rule change will amend the Rule 64B5-17.002, Florida Administrative Code, as follows:

(a) Appropriate medical history, including any current or previous medical conditions, surgeries, hospitalizations, medications, and legible blood pressure readings (when taken). The updating and review of the medical history must also be documented.
(b) Results of clinical examinations and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases.
(c) Any radiographs to include Cone Beam Computer Tomography (CBCT), and the results used for the diagnosis or treatment of the patient.
(d) Treatment plan and treatment options proposed by the dentist.
(e) Treatment rendered to the patient, including but not limited to the following, when applicable to the treatment performed:

(i) Type, amount, and mode of delivery (i.e., Mandibular block, Infiltration, etc.) of local anesthesia used;
(ii) Type and shade of restorative material used;
(iii) Preoperative and/or postoperative medications prescribed;
(iv) Medications delivered, administered, or provided to the patient during treatment or for use following treatment;
(v) Radiographs taken;
(vi) Impression material and type of impression taken (i.e., maxillary, mandibular, interocclusal, digital, etc.);
(vii) Medicaments, medications, sutures, irrigants, or bases applied to teeth or   periodontal tissues;
(viii) Names or initials of all staff involved with clinical care of the patient;
(ix) Use of dental barrier or rubber dam;
(x) Tooth or arch treated identified by name, number or letter;
(xi) Working length, canals treated, identify untreated canals and reason left untreated,  master apical file size, and obturation materials used during endodontic procedures; and
(xii) Unusual or unexpected events or reactions during or after the procedure including, but not limited to separation, breakage, retention, swallowing or aspiration, of any  instrument or portion thereof.

In addition to the above changes, the Board is also seeking a number of other amendments to the rule, including additional requirements for record alterations and duties of dentists of record.

The complete proposed rule change can be found at: http://bit.ly/1vr4Cxw

Comments?

Did you know about these proposed changes? If imposed, how will the changes affect you? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

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

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: Christopher E. Brown, J.D., 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 Ave., Altamonte Springs, FL 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 © 1996-2014 The Health Law Firm. All rights reserved.

Florida Medicaid Audits Dental Claims

By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law

The Agency for Health Care Administration (AHCA) is auditing Medicaid claims submitted by dental providers in Florida. AHCA is auditing dental practices looking for claims that were not billed in compliance with the Florida Medicaid Dental Services Coverage and Limitations Handbook. AHCA’s audits are focused on claims that are billed too frequently, claims that are billed on the same date of service as a redundant code, and claims that have been unbundled when they should have been billed as part of a comprehensive code.

Specific Dental Codes Being Audited.

Dental providers that are the subject of these audits may not learn of the audit until they receive the Preliminary Audit Report. It is extremely important to immediately retain experienced health care counsel if you receive a Preliminary Audit Report so that a timely rebuttal with additional documents can be submitted. The audits are performed by the AHCA based entirely on the claims submitted by the provider.

Some of the specific procedure codes included in the audits are:

– D0120,
– D0272,
– D1110,
– D1120,
– D1203,
– D1330,
– D0150,
– D0210,
– D0330,
– D4355, and
– D4341.

Take Preliminary Audit Reports Seriously.

Every dental provider that receives a Preliminary Audit Report from AHCA has a limited time to respond to the audit. AHCA may also impose sanctions and assess costs against dental providers in these audits. Any dental provider that receives notice of an audit by the Agency should contact legal counsel experienced in these matters without delay.

Click here for a previous blog on tips for responding to an AHCA audit.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

Our firm also routinely represents physicians, dentists, orthodontists, medical groups, clinics, pharmacies, home health care agencies, nursing homes and other health care providers in AHCA investigations, audits and recovery actions, as well as Medicare and Medicaid investigations, audits and recovery actions.

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

Comments?

Have you ever received a Preliminary Audit Report from the AHCA? Did you know how to respond? Please leave any thoughtful comments below.

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He 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 Ave., Altamonte Springs, FL 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 © 1996-2014 The Health Law Firm. All rights reserved.

Connecticut Dentist Gets Drilled in Huge Medicaid Fraud Case

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

A dentist and owner of a number of clinics in Connecticut is feeling the pain of justice. According to a number of news sources, Gary Anusavice will spend the next eight (8) years in prison for targeting poor patients, performing unnecessary dental procedures and collecting $21 million in fraudulent Medicaid claims. He was sentenced on October 9, 2013.

To read an article on the dentist’s sentencing from The Hartford Courant, click here.

Dentist Must Forfeit Luxury Items.

On top of prison time, the dentist will have to pay $3.3 million in restitution and $1.9 million to the Internal Revenue Service (IRS) as a result of his Medicaid fraud scheme, according to The Hartford Courant. He was also ordered to forfeit his mansion, a 2008 Mercedes-Benz, a yacht and more than $91,000 in cash that was found in his home.

According to news reports, this is far from the first time he has been accused of defrauding the Medicaid program.

Dentist Previously Barred from Practicing in Massachusetts and Rhode Island.

According to an article in the Connecticut Post, the dentist had previous run-ins with authorities in Massachusetts and Rhode Island involving health care fraud. Both states allegedly stripped him of his dental licenses. He was also allegedly barred from participating in Medicaid in those states.

Since the dentist could no longer practice in those states, in 2008, he opened three dental groups in Connecticut, according to the Connecticut Post. In these new practices, it’s alleged he hired other dentists and offered them commissions for performing expensive procedures, paid patient recruiters to solicit poor neighborhoods, and provided shuttle services for patients. In two years, his Connecticut clinics received $21 million in Medicaid payments, according to the Connecticut Post.

Click here to read the Connecticut Post article.

In June 2013, the dentist pleaded guilty to health care fraud and tax evasion.

Being Barred from the Medicare and Medicaid Program Can have Devastating Effects.

Few health care practitioners really understand the significance of being excluded from the Medicare or Medicaid programs. Exclusion usually occurs as a direct result of disciplinary action being taken by the state board of medicine, board of nursing, board of dentistry, board of pharmacy or other health care licensing entity. To read more on the effects of exclusion from the Medicare or Medicaid programs, click here.

Take Fraud Charges Seriously.

If you are accused of Medicare or Medicaid fraud, realize that you are in the fight of your life. Your liberty, life and profession are at stake. You need to sell everything you own, borrow everything you can and hire the absolute best criminal defense attorney available who has experience in defending such cases to represent you.

If you win and are acquitted, at least you still have a professional license and can start over. However, if you lose, you will most probably be in prison for years. You will lose your license. You will be excluded from Medicare. You will be a convicted felon. You will have nothing and will have no way of starting over successfully.

Do not delude yourself. This is extremely serious. Be prepared to give up whatever you have if you can avoid a conviction.

Often Fraud Claims Can Give Rise to Large Rewards Paid to Whistleblowers.

Practically every state now has statues which allow a monetary recovery to be a person bringing a claim on behalf of the state for false Medicaid payments. These are modeled after the federal False Claims Act, used to reward whistleblowers or qui tam relators for recovers in Medicaid fraud cases.

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

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Health Care Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, 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 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 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, assisted living facilities (AFLs), 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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Why was it so simple for the dentist to move to another state and continue to defraud Medicaid after being previously reprimanded for the same crime? Please leave any thoughtful comments below.

Sources:

Mahony, Edmund. “Dentist in Massive Medicaid Fraud Case Sentenced to 8 Years.” The Hartford Courant. (October 9, 2013). From: http://www.courant.com/health/connecticut/hc-medicaid-fraud-1010-20131009,0,1388813.story

Mayko, Michael. “Fraudulent Dentel-Group Owner Sentenced.” Connecticut Post. (October 9, 2013). From: http://www.ctpost.com/local/article/Fraudulent-dental-group-owner-sentenced-4883112.php
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 George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Overcoming License Suspension and Revocation Pending Appeal

By: Lance O. Leider, J.D.

If you are a dentist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. Ordinarily, you must immediately stop practicing or you risk being prosecuted for unlicensed practice, a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it immediately cuts off the licensee’s sole source of income. If you have a thriving practice, this will usually destroy any value your business has. Without income, paying your bills will be a challenge, much less the cost to fight the legal action or to appeal.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides an avenue for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a writ of supersedeas.

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the judgement of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH).

This relief is authorized in two separate places in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

The relief is not automatic, however. Both provisions specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. Fortunately, it is the burden of the agency whose order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

Other Considerations.

It is important to note that this form of relief will not make the underlying action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts.

An appeal is all about the law and the court cases that have interpreted the law. Unless the agency (in this case your board) made a legal error and violated the law, you won’t win.

For an appeal, a person needs an attorney. To prevail on an appeal, you must have a detailed knowledge of the correct, relevant court cases and you must be able to argue these in the proper form in legal briefs.

There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.
Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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

About the Author: 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 © 1996-2012 The Health Law Firm. All rights reserved.

 

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