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Will a Death from COVID-19 be Considered “Accidental Death” for Life Insurance Policies or a Death from “Accidental Causes?”

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

Almost all life insurance policies, including term policies, pay a “double indemnity,” that is, double the limits of coverage if a death occurs from “accidental causes” as opposed to “natural causes.”  A question arises, given the COVID-19 pandemic, of whether a death caused by the novel corona versus would be considered a natural death or an accidental death.  Fortunately, there is some guidance on this issue.

One reason it is important to distinguish between “accidental death” and “natural death” is that:

There is no pandemic exclusion for life insurance.  General life insurance covers pandemics, assuming you were truthful about your travel plans and exposure to illness during the application process.  . . . .  An accidental death & dismemberment policy is more limited and covers deaths only when they’re accidental.  It generally doesn’t [usually] cover deaths caused by illness and disease.

Nat’l Ass’n of Ins. Comm’rs, COVID-19 & Ins. (2020), https://content.naic.org/sites/default/files/inline-files/Insurance%20Brief%20-%20Covid-19%20and%20Insurance.pdf. (Emphasis added).

Definition of “Accidental Death”

According to Black’s Law Dictionary, an “accidental death” is defined as:  “A death that results from an unusual event, one that was not voluntary, intended, expected, or foreseeable.”  Accidental Death, Black’s Law Dictionary (4th pocket ed. 2011).  Likewise, Ballentine’s Law Dictionary states than an “accidental death” is:

One that occurs unforeseen, undesigned, and unexpected. 29 Am J Rev ed Ins § 1166.  One which occurs by accident, that is, was not designed or anticipated, albeit it may occur in consequence of a voluntary act.

Accidental Death, Ballentine’s Law Dictionary (3rd ed. 1969).

Under the above two definitions, definitions that are usually considered to come from the common law, death from the COVID-19 virus would be considered to be an “accidental death.”

Look to State Insurance Laws for Definitions.

One should also immediately look at the state’s insurance statutes to see if their state’s law defines “accidental death” in terms of insurance coverage.  As an example, Florida law provides such definitions in Chapter 627 of Florida Statues which deals with insurance contracts.

Section 627.429(5)(c), Florida Statutes, is of particular note.  Regarding death from HIV, for example, it states:

Except for preexisting conditions specifically applying to sickness or medical condition of the insured, benefits under a life insurance policy shall not be denied or limited based on the fact that the insured’s death was caused, directly or indirectly, by exposure to the HIV infection or a specific sickness or medical condition derived from such infection. This paragraph does not prohibit the issuance of accidental death only or specified disease policies.

Section 627.429(5)(c), Florida Statutes (emphasis added).

This is significant because the Human Immunodeficiency Virus (HIV) is a very slow-acting disease that harms one’s immune system by destroying the white blood cells that fight infection.  Death may not occur for years, even decades from an infection.  Whereas, COVID-19 is a fast-acting respiratory virus.  If death from HIV could be considered an “accidental death,” than death from COVID-19 certainly could be classified as “accidental death,” as well.


Legal Arguments for “Accidental Death”

If you have a death in your family and there is life insurance coverage on that person, you should not accept the insurance company’s determination that the death is from “natural causes” as opposed to “accidental death.” Challenge this decision, in court, if necessary.

A death caused by the COVID-19 virus is clearly “from an unusual event.”  I doubt that anyone would even contest this issue.  It is also clearly “one that was not voluntary, intended, [or] expected.”  Again, the novel coronavirus pandemic has taken the world by surprise.  How can anyone in their right mind argue that it was truly “expected.”  “Foreseeable” would be an objective test as to whether this was something “reasonably foreseeable.”  It does not appear, from the shock and unreadiness displayed by state and national governments and health officials, that this event was truly reasonably foreseeable.

I did not foresee it, did you?  If 99.999% of the populace did not foresee it, how can it be argued that it is reasonably foreseeable?  At the very least, this is a jury question and the foregoing should be argued to the jury.  If the average reasonable man (the man who is a legal fiction) did not foresee this pandemic and the deaths that result, how can it not be an “accidental death”?  It seems that any jury would be hard-pressed to find other than an “accidental death.”

 
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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent 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, in patient complaints, and in Department of Health investigations.

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

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., 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.

“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.

Dermatologist in Florida Agrees to Pay $1.74 Million To Settle Medicaid FCA Suit

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 13, 2020, a Florida dermatologist and cosmetic surgeon agreed to pay $1.74 million to resolve allegations that he violated the False Claims Act (FCA). United States Attorney Maria Chapa Lopez announced that Dr. Thi Thien Nguyen Tran and Village Dermatology and Cosmetic Surgery, L.L.C. agreed to settle the case involving allegedly inflated Medicare claims. The settlement concludes the qui tam (whistleblowers) civil lawsuit originally filed in the United States District Court for the Middle District of Florida.

Inflated Claims to Medicare Claimed in Suit.

According to the settlement agreement, from 2011 through 2016, Dr. Tran and Village Dermatology billed for 14,000 tissue transfers, which should have been billed as lower-level wound repairs. These submissions allegedly resulted in inflated claims that Medicare paid at rates higher than it should have paid. The exaggerated claims that were submitted to Medicare were for wound repairs related to Mohs surgery, a common, in-office procedure for dermatologists.

Qui Tam, Whistleblower Provisions.

The suit was originally filed under the qui tam, or whistleblower, provisions of the False Claims Act. This law, originally enacted during the Civil War, allows a private citizen to sue on behalf of the United States for false claims the government paid; if successful in recovering money, the whistleblower shares in the recovery. The Act also allows the United States to intervene and prosecute the action. According to the DOJ, the whistleblowers in this suit will receive over $305,000 of the proceeds from the settlement it made with Dr. Tran and Village Dermatology.

This case just shows that even physicians can and should bring such claims and be rewarded for their whistleblowing activities.

To read the press release issued by the DOJ, click here.

Read about a recent case involving FCA allegations by reading one of my prior blogs here.

False Claims Act Cases Can Often be Settled Early and Greater Penalties, Including Prison, Avoided.

This case shows that getting an experienced attorney involved early in the proceedings can lead to a monetary settlement on a case for a much lower price than if it were unnecessarily and aggressively defended. False Claims Act cases carry with them the threat of a possible criminal prosecution which can result in years in prison for a physician. They could also result in civil monetary penalties in the millions of dollars. This is because the government is allowed to pursue treble dames, plus $11,500 (adjusted for inflation), plus attorneys fee and costs, for each claim. Thus, if a physician has only 100 possibly false claims that Medicare paid for $100 each, this could result in over $1,150,300.00, plus attorney fees and costs for them. 1,000 false claims, over $11 million in possible penalties.

If the physician can retain the services of an experienced health lawyer who can negotiate down the amount sought by the government millions of dollars in penalties, legal fees and lost time from medical practice may be achieved. On the other hand, in the right case, if a physician is not guilty of any false billings, these cases can be identified early and a cohesive, organized defense planned early.

Contact Health Law Attorneys Experienced with Qui Tam, Whistleblower Cases, and False Claims Act Violations.

Attorneys with The Health Law Firm represent dermatologists and other physicians, nurse practitioners and other nurses, and health professionals who need to defend a False Claims Act case, or who desire to file a False Claims Act (whistleblower or qui tam) case. However, the attorneys of The Health Law Firm also defend physicians, medical groups, and health facilities who have been sued in False Claims Act (whistleblower or qui tam) cases or have had administrative or civil complaints filed against them to recover civil monetary penalties. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.

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

Sources:

Pederson, Joe. “Villages doctor agrees to pay $1.7 million to settle False Claims Act Liability after inflating Medicare claims.” Orlando Sentinel. (March 13, 2020). Web.

“Villages doctor agrees to pay $1.7 million to settle False Claims Act after inflating Medicare claims.” MSN News. (March 16, 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 the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

By |2020-05-07T12:43:17-04:00May 7th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Insurer Faces Possible Class Action Over Rejected Pandemic Business Interruption Claims

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

On April 14, 2020, several companies announced they are considering a class action lawsuit against Hiscox Insurance over its failure to pay business interruption claims relating to the coronavirus lockdown. Hiscox, sold policies before COVID-19 hit. The policies allegedly stated that they would cover claims related to businesses being forced to shut owing to a notifiable disease. Business owners have reportedly filed claims with Hiscox and other commercial insurance companies, only to be told that their policies don’t cover the losses related to the pandemic.

Policy Wording.

The company’s policy wording says business interruption claims can be made if a public authority makes the business premises unusable due to “an occurrence of any human infectious or human contagion disease.”

Hiscox claims the policy’s coverage would only be triggered by “certain specific events at, or local to, the premises.” The insurer said its policies were not designed to cover the extraordinary circumstances caused by the pandemic. In a statement, the company said, “We understand that these are incredibly difficult times for businesses affected by COVID-19. At Hiscox, we strive to pay claims that are covered by the policies fairly and quickly. However, general business interruption policies across the industry, including Hiscox’s, were not designed to cover these extraordinary circumstances. Like terrorism and flood, which have government-backed insurance schemes, pandemics like coronavirus are simply too large and too systemic for private insurers to cover,” it added.

Business Interruption.

Business interruption insurance usually provides protection against the closure of business because of damage to property. Multiple “non-damage” extensions can be added to standard policies, including those for denial of access because of communicable disease. A communicable disease extension or addendum will typically cover losses arising from closure resulting from an outbreak of a virus or bacteria on-site or nearby.

Many policies’ word also includes a defined list of diseases covered under the terms of the policy, which range from the SARS virus to smallpox. Others are less specific, offering coverage for any “notifiable disease” outbreak required by law to be reported to authorities. Additionally, sometimes communicable disease policy addendums contain exclusions, which state that an outbreak must have occurred on the business premises or within a defined vicinity.

The Problem With Policies?

The difficulty is that in the majority of cases, these policies cite “direct physical loss or damage” as a requirement to be triggered. Unfortunately, a quarantine, travel ban, shelter-in-place orders, or pandemic might make it impossible for a business to keep its doors open, but unfortunately may not constitute obvious “physical damage.” So, if the wording fits, as far as the insurance company is concerned, it’s not their problem!

Hiscox denied the claims made against them and responded that the clause was designed to cover losses “solely and directly” from restrictions imposed by a public authority. It would not apply in this case because losses would have still occurred even if businesses had not been closed, because of the government-imposed lockdown.

Legal Issues For Insurance Policies.

There are several important points to remember when dealing with insurance policies and claims made to an insurer.

First, insurance is governed by state law, so interpretations and policy coverage requirements may differ from state to state. Always check your state’s insurance laws and the cases that interpret them to see if the issue is governed by them.

Second, your insurance policy is a contract between you and the insurance company. Read the contract and see what it states. If it is vague or there is a doubt after you read it, you may have a good case. See the next step below.

Third, the insurance company wrote the policy. The insurance company had complete control over the wording of the policy. It was up to the insurance company to be definite and specific in what was covered or not covered. If there is doubt in the coverage that is provided in the policy, the courts will usually interpret this against the insurance company so as to provide coverage to the insured for the loss.

Fourth, when there is a problem with an insurance claim or a denied claim, immediately retain the services of one of the many attorneys who are experienced in suing insurance companies. These attorneys usually know what they are doing and will not charge you unless they obtain a recovery for you.

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. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. 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 and visit our website at www.ThehealthLawFirm.com

Sources:

Croucher, Martin. “Insurers Face Legal Tests Over Rejected Pandemic Claims.” Law360. (April 17, 2020). Web.

Croucher, Martin. “Hiscox Could Face Class Action Over COVID-19 Response” Law360. (April 14, 2020). Web.

Cox, Josie. “Coronavirus has exposed Britain’s insurance industry as a shambles.” The Guardian. (March 18, 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.

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, 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

“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.

EEOC Sues Yale Hospital For Age, Disability Discrimination

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 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) sued Yale-New Haven Hospital (YNNH), accusing the university’s hospital of discriminating against older doctors. The lawsuit was filed in the U.S. District Court for the District of Connecticut, accusing the teaching hospital of the Yale School of Medicine of violating federal anti-discrimination laws. The hospital allegedly violated federal law by adopting and implementing a discriminatory “Late Career Practitioner Policy,” according to the complaint filed by EEOC officials.

Yale’s Late Career Practitioner Policy.

The EEOC stated that it appeared that Yale violated federal laws by forcing physicians over age 70 to take neuropsychological and eye exams in order to gain or keep their medical staff privileges. Younger doctors were not subject to this “Late Career Practitioner Policy,” the EEOC claimed.

By subjecting doctors, dentists, and podiatrists to screening evaluations based solely on their age, without regard to any particular suspicion about their mental ability or eyesight, the hospital’s policy violates the Age Discrimination in Employment Act (ADEA), the EEOC alleges in its complaint. You can view the complaint in full on our website.

Additionally, the suit alleges that the policy violates the Americans with Disabilities Act (ADA), which specifically prohibits subjecting employees to medical examinations that are not job-related and consistent with business necessity.

The EEOC is seeking compensatory and punitive damages and injunctive relief against Yale, which includes the elimination of the policy, according to its press release. Read the full statement and press released issued by the EEOC here.

To read about a similar case dealing with an age discrimination suit among nurses, click here to read my prior blog.

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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent 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, in patient complaints and in Department of Health investigations.

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

Sources:

Stawicki, Kevin. “EEOC Sues Yale Hospital For Making Older Docs Take Tests.” Law360. (February 11, 2020). Web.

“EEOC Sues Yale New Haven Hospital for Age and Disability Discrimination.” JD Supra. (February 12, 2020). Web.

Steinberg, Julie. “EEOC Sues Yale New Haven Hospital for Age Bias Over Exam Policy.” Bloomberg Law. (February 11, 2020).

Stempniak, Marty. “Yale accused of age discrimination for subjecting older radiologists, other docs to competency testing.” Radiology Business. (February 12, 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Equal Employment Opportunity Commission (EEOC) investigations, 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, medical staff peer review defense attorney lawyer, hospital medical staff peer review defense legal counsel, medical staff clinical privileges defense attorney lawyer, medical staff clinical privileges defense legal representation, hospital medical staff fair hearing defense attorney lawyer, hospital medical staff fair hearing defense legal counsel, teaching hospital clinical professor legal representation, teaching hospital clinical professor attorney lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, 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

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

Prosecutors Push To Keep Florida Telehealth Fraud Suspect in Jail for $424 Million Scheme

Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 19, 2020, federal prosecutors in New Jersey federal court pushed to keep a suspect involved in a $424 million telemedicine scheme in jail.  Authorities called him an “unrepentant conman” who carried out one of the largest health care fraud schemes in U.S. history and is likely to flee the country if released.


Fraud and Kickback Telehealth Scheme.

The defendant, who owns telehealth companies, has been locked up for nearly 11 months since he was charged last year with running an international fraud and kickback scam. He allegedly paid doctors to order unnecessary orthotic braces for Medicare beneficiaries and solicited bribes and kickbacks from brace suppliers in exchange for patient referrals.

Prosecutors say he went to great lengths to hide his scheme, including lying to obtain legal opinion letters bolstering his claim that he ran legitimate companies that profited from patient subscription fees. In reality, he was concealing the fact that most of those payments were kickbacks from brace suppliers.

Flight Risk?

In an opposition brief, prosecutors said that there aren’t any suitable bail conditions for the suspect, given his risk of flight and the danger he poses to the community. According to the government, he has a long history of deception and scheming involving foreign businesses, residences, and assets, including a $1 million yacht. Additionally, he claimed to control several foreign bank accounts and once told a cooperating witness that if the government started investigating him, he would flee to Venezuela.

The defendant argued that he’s not a flight risk because he has no criminal history and has close ties to his South Florida community.

Florida’s Involved in a Fraud Case, Shocker!

Another scenario that seems to be right out of a Carl Hiaasen or Tim Dorsey novel.  Why does Florida continue to attract and protect the assets fo fraudsters, conmen, and deadbeats?  Does it go back to our history of being the wintering ground for carnies and traveling circuses?

In 2019, the defendant was charged along with 23 other individuals in a crackdown on telehealth fraud schemes in New Jersey, Pennsylvania, South Carolina Texas, Florida and California, involving over $1.2 billion in losses.

Given his close community ties and its reputation, it comes as no surprise that getting doctors to sign off on fraudulent prescriptions was a part allegedly played by telehealth company owners in Florida. Click here to view the indictment.

For years, Florida has been the home to health care fraudsters and ranked number one in terms of fraud cases. So, it’s not shocking that three Florida telehealth executives were also charged in what appears to be the biggest case in the takedown.
Click here to learn more about this case.

Therefore, to prevent flight and protect the public, prosecutors requested that the Court deny the
defendant’s motion to revoke the detention order and keep him detained. Click here to read the opposition brief.

To read about a similar telehealth case in Florida, click here to read my prior blog.


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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 or visit our website at www.TheHealthLawFirm.com.

Sources:

Bishop, Stweart. “Feds Push To Keep Telehealth Fraud Suspect Locked Up.” Law360. (March 19, 2020). Web.

Godoy, Jody. “Execs, MDs Charged In $1.2B Medicare Fraud Scheme.” Law360. (April 9, 2019). 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.

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

By |2020-04-08T15:45:25-04:00April 8th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Did You Lose Your ABIM Board Eligible Credentials?

Attorney Achal A. Aggarwal

We have been contacted by numerous physicians who had completed residency programs in internal medicine and only recently discovered that their time has now expired to become board certified.  ABIM considers internal medicine and subspecialist physicians who had met the standards for Board Certification in general internal medicine or any subspecialties to be “Board Eligible” in the relevant specialty for seven (7) years.

Recently, many physicians who had previously been board eligible found out that they could no longer apply for the certification exam or become board certified.

The ABIM Changes the Rules.

In July 2012, The American Board of Internal Medicine (“ABIM”) changed its rules regarding the designation of “Board Eligible” and the qualifications to apply for a board certification exam.

The 2012 rule requires physicians who wish to become board certified in internal medicine, or any of the ABIM’s subspecialties, to register for and take the certification exam within seven (7) years of becoming Board Eligible.  After seven (7) years, if the physician has not taken and passed the board certification exam, that physician loses their “Board Eligible” status and will not be allowed to take the board certification exam.

Requirements if the Time Limit has Expired.

A physician who is no longer “Board Eligible” because more than seven years has passed can only apply for the ABIM’s certification exams if the physician has:

1.    completed one (1) year of retraining in the relevant specialty after the expiration of the physician’s period of Board Eligibility; and

2.    the physician has met all other requirements for board certification in effect at that time.

This means that any physician who loses Board Eligibility and has not been board certified will be required to complete a one (1) year residency/fellowship in the applicable field before qualifying for the ABIM’s certification exams.  The one (1) year residency/fellowship must be at an ACGME-accredited U.S. training program or an RCPSC-accredited Canadian training program.  Additionally, the physician will need to obtain an attestation from the program which states that the physician has demonstrated the requisite competency for unsupervised practice.

Rule Change Limits How Many Times a Physician Can Take the ABIM’s Certification Exams.

In 2011, ABIM implemented a rule that prevents physicians from taking its certification exams more than three (3) times in a row.  After a third failed attempt at a certification exam, the physician will be prevented from registering for an exam for a year.  This means that if a physician fails a certification exam in 2017, 2018, and 2019, then that physician will be prevented from registering for an ABIM certification exam in 2020 and would have to wait till 2021 to re-apply.

This rule only puts a cap on three (3) failed attempts.  If the physician fails twice in a row and then takes a year off, they can still register for an ABIM certification exam the following year.  For example, if a physician fails an ABIM certification exam in 2017 and 2018 and then does not register for the 2019 exam, that physician can still register for the 2020 exam.


What Can Be Done to Obtain Authorization to Take Board Certification Exam if Your Time is Up?

What can be done to obtain authorization to take the ABIM board certification exam if your seven years has expired or you have exceeded the number of attempts allowed? We have prepared petitions for physicians who have been unable to take the examinations because of personal hardships or other mitigating factors.  Although it is expected that approval of a request for additional time to take the exam or an additional attempt to take the exam may not be successful if sufficient hardship and mitigating facts are shown we expect that the ABIM may grant these requests.  There is no guarantee and, as of yet, we have no indication this will work or what percentage may be granted or denied.

For more information, click here to read one of my prior blogs regarding ABIM matters.

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

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in investigations and hearings of all types.  This includes board certification hearings, medical board hearings, Drug Enforcement Administration (DEA) hearings, Food and Drug Administration (FDA) hearings, medical staff peer review and clinical privileges hearings, FBI Investigations, DOJ Investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid overpayment demands and hearings, and other types of investigations of health professionals and providers.  We also undertake civil litigation in the same types of cases.

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

KeyWords: American Board of Internal Medicine (ABIM), legal representation for ABIM investigations, legal representation for ABIM discipline, legal representation for ABIM certification, legal representation for Board representation, legal representation for Board investigations, defense attorney for Board investigations, attorney for Board representation, legal representation for medical students, legal representation for medical residents, legal representation for medical fellows, legal representation for physician employment agreement, physician employment contract attorney, legal representation for physician license revocation, licensure defense attorney, legal representation for health care professionals, health law defense attorney, The Health Law Firm, reviews of The Health Law Firm, The Health Law Firm attorney reviews board certification hearings, medical board hearings, Drug Enforcement Administration (DEA) hearings, Food and Drug Administration (FDA) hearings, medical staff peer review and clinical privileges hearings, FBI Investigations, DOJ Investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid overpayment demands and hearings, and other types of investigations of health professionals

“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.

How Can I Be Sure I Don’t Have Employees, Contractors Who Are on Medicare’s 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
We are often consulted by companies in the health care industry and by health professionals after they receive a subpoena or audit regarding their employing or contracting with an individual or business that is on the Office of the Inspector General’s (OIG’s) List of Excluded Individuals and Entities (LEIE), who are prohibited from contracting with Medicare. This can cause devastating consequences since the law prohibits this by anyone contracting with the government or receiving any payments from any government healthcare program from dealing with these persons. This includes anyone contracting with or receiving payment from Medicare, Medicaid, Tricare, the Veterans Administration, and the military, among others. It can also lead to a demand for repayment of claims for services or products provided, as well as civil monetary penalties, fines, and other adverse actions.

To ensure that you do not violate the federal laws and regulations involved, you should check the OIG’s online LEIE for every new employee or contractor with whom you deal.

Be sure that you also check for any other names (maiden names, married names, fictitious business names) and the names of the officers, directors, shareholders, and owners of any business entities.

This should be on your new employee checklist (kept in the personnel file) and your contracting checklist for new contracts.

If you have not previously done this, have your administrator, human relations (HR) director or contracting officer do this right now and place the results in the personnel file or contracting file for each one checked.

You might also adopt a form similar to this and have it completed by all new employees or contractors as a part of the new employee check-in process. You are still responsible for verifying non-exclusion for all contractors and employees, but this form may help eliminate some problems from the outset and will educate all of your employees and contractors to the requirements.

Visit our website and view an example form.

To learn more about how OIG exclusion can affect you, click here to read of our prior blogs.

Don’t let Medicare or Medicaid exclusion ruin your professional career. Click here to learn how The Health Law Firm and help you if you find yourself on the OIG list.

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 (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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

By |2020-03-13T18:53:30-04:00March 13th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Telemedicine Company Owners Charged in $56 Million Kickback Scheme

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 5, 2020, the owners of two telemedicine companies were charged in New Jersey federal court with defrauding Medicare in an alleged $56 million telehealth scheme involving orthotic braces. Some of the fraud alleged to have occurred was through a Florida location. The married co-owners of Advantage Choice Care and Tele Medicare are reported to have used the companies to solicit kickbacks and bribes from patient recruiters, pharmacies, and brace suppliers. The company would then hire providers to order medically unnecessary braces that were billed to Medicare, according to the U.S. Department of Justice (DOJ).

The scheme allegedly took place from March 2017 to April 2019.

Sham Contracts to Hide Kickbacks.

The fraud scheme allegedly was able to evade detection by the U.S. Department of Health and Human Services (HHS) by using sham contracts that labeled the kickbacks as “consultations” and “medical expenditures,” the government said. The illegal payments, some as much as $34,910, were all made through bank accounts that indirectly funneled cash into Advantage Choice Care.

Authorities say the pair and others transferred the brace orders to co-conspirator suppliers to support more than $56 million in false and fraudulent claims to Medicare that were submitted by brace suppliers. According to court documents, Medicare paid these brace suppliers over $28 million for these claims.

The Charges.

The husband and wife were arrested and charged with six counts, according to the indictment. They were charged with one count of conspiracy to defraud the United States and to pay and receive health care kickbacks, one count of conspiracy to commit health care fraud and wire fraud, three counts of receiving health care kickbacks, and one count of conspiracy to commit money laundering. These charges are standard for most fraud prosecutions in federal court. Click here to view the indictment in full.

The couple owned and operated two telemedicine companies which had locations in Bayonne, New Jersey, Boca Raton, Florida, and Richmond Hill, Georgia. To view the DOJ’s press release on this case, click here.

Click here to read one of my prior blogs to learn more about Telemedicine in Florida.

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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 or visit our website at www.TheHealthLawFirm.com.

Sources:

“Telemedicine co. owners charged in $56 million Medicare fraud case.” Modern Healthcare. (February 5, 2020). Web.

Stawicki, Kevin. “Telemedicine Execs Charged In $56M Medicare Fraud Scheme.” Law360. (February 5, 2020).

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.

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

By |2020-03-06T12:08:22-05:00March 6th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Nursing Student Files Sexual Harassment, Retaliation Lawsuit Against UNC Greensboro

Attorney George F. Indest Headshot By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On November 29, 2019, a former University of North Carolina nursing student sued the school’s Greensboro campus, saying it improperly dismissed from her a program a month before graduation. She filed two separate suits. She claims she was forced to endure sexual harassment as a student for years. Then, when she accused a supervisor of misconduct, she was gradually pushed out of the nursing program, according to the lawsuit.

She is suing the University of North Carolina’s Greensboro nursing department in state court and UNC’s Board of Directors along with the Raleigh School of Nurse Anesthesia in federal court.

Lawsuit Describes Alleged Harassment, Retaliation.

According to the suit, the harassment began less than a year after she enrolled in the Doctor of Nursing Program at UNCG in August 2015, with hopes of becoming a nurse anesthesiologist. She was put under the supervision of a male certified registered nurse anesthetist, or CRNA. In her suit, she alleges that her supervisor began acting inappropriately almost immediately.

When she reported the harassment in July 2016, that’s when the retaliation started, claims the lawsuit. “They started trying to find things,” she reportedly said. She claims that one supervisor told her “If I can’t get you for this, I can get you for something else.” A few months later, on October 31, 2016, she states she was given additional clinical work and reassigned to work with the same CRNA she had previously reported for harassment, according to court documents.

In June 2018, a month before she was to graduate, she was dismissed from the program for what the school said were unsafe nursing practices. She appealed and UNCG allowed her to re-enroll in January 2019 for a tuition of $10,000. However, a month later, she was dismissed again for unsafe nursing practices. UNCG then refused any further appeals and upheld her dismissal in May 2019.

The nursing student is seeking unspecified damages, including loss of income and repayment of tuition, according to the lawsuit.

To read one of my prior blogs on a similar case dealing with a harassment lawsuit at Rutgers University, click here.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents, and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections, and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Sources:

“Lawsuit describes harassment, retaliation at UNCG nursing school.” Greensboro News & Record. (December 3, 2019). Web.

Waggoner, Martha. “Lawsuit describes harassment, retaliation at Nursing School.” The Washington Post. (December 3, 2019). Web.

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

KeyWords: Legal representation for nursing students, legal representation for nurse practice students, legal representation for nurse anesthetist students, nursing student attorney, nurse practice attorney, nurse anesthetist student attorney, nursing student legal counsel, nurse practice legal counsel, nurse anesthetist legal counsel, education law attorney for health professionals, education law legal counsel for health professional students, education law lawyer for health professional students academic review hearing attorney, nursing board defense attorney, nursing board defense legal representation, nursing school attorney, nursing school lawyer, nursing school legal counsel, nursing school legal defense counsel, legal dispute with nursing school, legal representation for CRNAs, attorney for CRNAs, lawyer for CRNAs, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, board of nursing legal defense counsel, board of nursing defense lawyer, board of nursing defense attorney

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

One of 2019’s Largest Healthcare Fraud Case Ever: No Surprise, Florida Wins!

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
For years, Florida has topped the lists with the highest rates of Medicare and Medicaid fraud and abuse. But even by the standards of Florida’s rampant healthcare fraud, this 2019 case stands out for its sheer size, making Florida, once again, the leader in fakes and frauds. Often joked and written about by Florida novelists such as Carl Hiassin and Tim Dorsey, this case serves to highlight why the “Debtor’s Haven” state often excels in cases of healthcare fraud.

In April 2019, after decades of alleged schemes, illegal kickbacks and money laundering in connection with fraudulent claims to Medicare and Medicaid, Phillip Esformes was sentenced to 20 years in prison. He was also ordered to pay $44.2 million in money forfeitures and restitution, and forfeiture of his ownership interests in several skilled nursing homes.

A federal district judge sentenced the South Florida health care facility owner after he was found guilty in the largest health care fraud scheme ever charged by the U.S. Justice Department (DOJ).

A Case of “Epic” Fraud.

The nursing home mogul was accused of paying bribes and receiving kickbacks in a massive $1 billion Medicare fraud case touted by federal prosecutors as the largest in the nation. During an eight-week jury trial, prosecutors argued that Esformes himself made $38 million from Medicare and Medicaid payments between 2010 and 2016. Additionally, his South Florida network received more than $450 million through bribes and though services that weren’t medically necessary or which were never provided, according to the prosecution’s case.

To learn more about this case, click here to read one of my prior blogs.

Convicted, But Not of Healthcare Fraud.

The shocker, in this case, is that the federal jury convicted Esformes on 20 counts of conspiracy to defraud the taxpayer-funded Medicare program. The lack of a conviction for healthcare fraud itself was puzzling. Many of his alleged co-conspirators had already pled guilty to health care fraud and some had even testified against him at trial. To learn more, click here to read one of my prior blogs on another individual involved in the case.

Despite being billed as the largest healthcare fraud case prosecuted in U.S. history, it is also a stark reminder to prosecutors of how tricky it can be to secure a conviction on any particular charge.

To read the DOJ’s press release about this case in full, click here.

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

The attorneys of The Health Law Firm represent healthcare providers in Medicare and Medicaid audits, and in ZPIC and 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. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, recovery actions and administrative actions seeking termination from Medicare and Medicaid Programs.

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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Sources:

Weaver, Jay. “Miami healthcare exec Esformes sentenced to 20 years in biggest Medicare fraud case.” Miami Herald. (September 12, 2019). Web.

Hale, Nathan. “The Biggest Stories In Florida Legal News Of 2019.” Law360. (December 20, 2019). Web.

Jackson, David. “Nursing home mogul Philip Esformes sentenced to 20 years for $1.3 billion Medicaid fraud.” Chicago Tribune. (September 13, 2019). 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.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019/2020 The Health Law Firm. All rights reserved.

By |2019-12-30T19:35:03-05:00February 10th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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