Health Facilities Law Blog

Supreme Court Rules Against HHS in Hospital Medicare Reimbursement Case

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

On June 15, 2022, the U.S. Supreme Court said the federal government improperly cut more than $1 billion a year in Medicare reimbursements to hospitals. This came in a ruling that limits regulators’ power to control what the program pays for certain drugs. In this case, the Supreme Court justices sided unanimously with a group of hospitals suing over drug reimbursement rates for facilities that serve low-income communities. In writing for the court, Justice Brett Kavanaugh said the U.S. Department of Health and Human Services (HHS) improperly calculated reimbursement rates using a methodology Congress authorized for use only in limited circumstances.

Were the Reimbursement Cuts Unlawful?

The Supreme Court overturned a lower court’s 2020 decision that HHS had the authority to reduce the yearly Medicare reimbursement rates for a group of hospitals serving low income communities. Click here to view the July 31, 2020 decision.

The high court found the U.S. Court of Appeals for the District of Columbia Circuit erred in 2020 when it allowed the HHS to reduce Medicare payments, by roughly $1.6 billion, for outpatient drugs that had helped subsidize the operations of the hospitals. The Supreme Court’s decision did not extend so far as to undermine HHS authority, but only stated how the agency acted unlawfully in accordance with its varying rates for hospitals under the 340B Drug Pricing Program.

“In short, the statute allows HHS to set reimbursement rates based on average price and affords the agency discretion to ‘adjust’ the price up or down. But unless HHS conducts a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates by hospital group,” Justice Kavanaugh wrote in the ruling.

Regulating Reimbursement Rates Under the 340B Program.

Under Medicare, health care providers get reimbursed by the government for expenses, including medications used in hospital outpatient departments. Previously, hospitals had been getting reimbursed at a rate based on the average price of the drugs. However, in 2018, the HHS, under then-President Donald Trump, cut payments for outpatient drugs by 28.5% to hospitals receiving money under the 340B program.

The department found that reimbursements were too high because these hospitals obtain the drugs from manufacturers at a deep discount, an issue that also resulted in excessive patient co-payments. Additionally, the resulting cut dealt “a crushing blow to providers that were already operating on razor-thin margins and to the vulnerable populations they serve,” the hospitals told the justices in a court filing.

Justice Brett Kavanaugh wrote for the court that “absent a survey of hospitals’ acquisition costs,” the HHS “may not vary the reimbursement rates for 340B hospitals. The HHS’s 2018 and 2019 reimbursement rates for 340B hospitals were therefore contrary to the statute and unlawful.”

Click here to read the Supreme Court’s Opinion in the case, American Hospital Association v. Becerra, 20-1114.

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

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, Medcaid audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free at (888) 331-6620.

Sources:

Stohr, Greg. “Supreme Court Sides With Hospitals on Medicare Reimbursement.” Bloomberg Law. (June 15, 2022). Web.

Chung, Andrew. “U.S. Supreme Court faults Medicare cuts to hospitals for outpatient drugs.” Reuters. (June 15, 2022). Web.

Gresko, Jessica. “High court rules against government on drug reimbursement.” Associated Press. (June 15, 2022). 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 Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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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.
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Are You the Target of a Medicaid Audit? Tips Health Professionals Should Be Following

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

The Agency for Health Care Administration (AHCA), Office of Inspector General (OIG), and Bureau of Medicaid Program Integrity is the Florida agency responsible for routine Medicaid audits The agency ensures that the Medicaid program was billed correctly for services by health care professionals. Those receiving the greatest amounts of Medicaid payments are also the ones most likely to be audited.

These include pediatricians, Ob/Gyns, family practice physicians, and dentists. The Medicaid audit usually requests information in a questionnaire form. It also includes a request for copies of medical records (including X-rays and other diagnostic studies) for the patients selected for the audit.

If AHCA determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. Additionally, fines and penalties can be added by the Medicaid program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.

Practical Tips for Your Practice.

There are ways to run the everyday practice that will help you if you are selected for a Medicaid audit.
1. Every patient record entry should be clearly dated and signed or initialed by the provider. Make sure this is always done.

2. When documenting the patient’s record, make sure that you document exactly what services were needed and completed to support what was billed to Medicaid.

3. Communicate with the person responsible for your billing so that the actual services provided are billed for. Do not bill in advance for anticipated services needed as indicated in the appointment calendar or on a treatment plan.

4. Keep the patient records organized and ready for copying, if necessary. Using only one-sided documents and securely fastening small forms (prescriptions, telephone memos, small sticky notes) onto 8-1/2″ by 11″ paper will help those still using paper charts. Scan all such documents into the patient record using an electronic health record (EHR).

5. Services provided by a physician not enrolled in the Medicaid program to a Medicaid patient may not be billed to or paid by the Medicaid program. Therefore, never allow any other physician associated with your practice who is not enrolled as a Medicaid provider to provide services to Medicaid patients. Do not allow a new physician coming into your practice to treat Medicaid patients until he or she actually has received his or her Medicaid provider number. The group may not bill for the services, nor may another physician bill for the services.

6. Ensure that all health care professionals’ licenses and permits are updated. Ensure that all X-rays, clinical lab, and diagnostic equipment are permitted and kept up to date. Ensure that any CLIA license or exemption certificate is correct and kept up to date. Services billed by unlicensed personnel or services provided by improperly-licensed facilities may not be paid by the Medicaid program.

7. Use only standard abbreviations in your medical records documentation, orders, and reports. While an abbreviation may seem familiar to you or your practice, the auditors may not recognize it if it is not a universally accepted abbreviation.

8. Make sure all records are timely made, accurate and legible. Safeguard them, and never let the original leave your office. Illegible records are treated as a non-record, and payment is wholly disallowed for an illegible note or order. A missing record, X-ray, or chart entry will result in a complete repayment being directed for those services.

The Medicaid Audit.

If you are on the receiving end of an audit, AHCA will send you a letter notifying you. AHCA will also supply you with a list of patients to be sampled. A standard sample will include a list of anywhere from 30 to 150 patient names, as a general rule, depending on the size of the practice. Regular audits routinely request 30 to 50 patients’ records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a “Certification of Completeness of Records” form to complete and return with the copies of the patient records. (Please note: This will be used against you in the future if you attempt to add or supplement the copies of the records you provided.)

For more information, read a past blog that will let you know if you are the subject of an audit.

You must retain the services of an expert consultant or experienced health care attorney to correctly and accurately complete the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.

If you have been accused of Medicaid fraud and need to prepare for an audit, watch our informational video blog.

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 Healthcare 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 law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, 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.

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 © 2018 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T09:59:17-04:00November 18, 2023|Categories: Health Facilities Law Blog|Tags: administrative hearing representation, Agency for Health Care Administration, ahca, Bureau of Medicaid Program Integrity, defense attorney, defense lawyer, Florida health law attorney, Florida health law lawyer, Florida Medicaid attorney, Florida Medicaid lawyer, health care fraud attorney, health care fraud representation, health care law firm, health law attorney, health law lawyer, licensure defense attorney, Medicaid attorney, Medicaid audit appeal attorney, Medicaid audit attorney, Medicaid audit lawyer, Medicaid audit representation, Medicaid defense attorney, Medicaid defense lawyer, Medicaid overpayment demands, Office of Inspector General, overbilling attorney, PAR, physician attorney, preliminary audit report, representation for licensure issues, representation for Medicaid overpayment, representation for Medicaid program, representation for overbilling, The Health Law Firm review|Comments Off

Doctor’s Defamation Suit Against University over Use of Resident Physicians Moves Forward

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

On July 11, 2023, the United States District Court for the Eastern District of Kentucky allowed a doctor to move forward with one of his defamation claims against the university’s provost for allegations made to support his termination.

A medical doctor and oral surgeon at the University of Kentucky (UK) sued the university and university officials on multiple grounds, including making a defamation claim against the university’s provost. The defamation claim stems from the Statement of Charges made by the provost in the physician’s termination proceedings.

The Statement of Charges claims that the doctor stole from the UK, took credit for patient care services that a resident performed, caused the College of Dentistry to submit false claims to the federal government, and encouraged a colleague to falsify medical records.

The court granted summary judgment on three counts but denied summary judgment on the claim that the doctor stole from the university.

University of Kentucky Policy.

The UK employed the doctor from 2001 to 2019. Before 2017, UK policy approved by its Dental Care Board required its staff to designate the faculty member as the treatment provider on billing documents when a resident helped the faculty member with treatment and documented the care. During 2017, billing practices changed, and employees began designating residents as the treatment providers whenever the residents documented a patient’s care.

When the faculty member was designated as the treatment provider, the faculty member would be entitled to 40 percent of the fees paid.

University of Kentucky’s Investigation.

From April 2017 to July 2018, UK documents designated a resident as the treatment provider for 89 patients the plaintiffs doctor alleges he treated. The doctor, believing he was entitled to income for this care, reviewed the files and removed any reference to a resident from the patient notes, or so it is alleged in the pleadings.

The altered documents triggered an internal investigation. The university interviewed seven residents whose notes had been changed by the doctor. The residents confirmed that patient clinical care occurred in two ways: 1) they would treat the patient and present their findings to the doctor, and he would then reevaluate the patient, or 2) the resident and doctor would treat the patient simultaneously.

Since none of the 89 patients left without seeing the doctor, he alleges that he was entitled to the income for their care.

The investigation confirmed that there were no patient care issues. The issues were purely with the documentation of the patient care. The medical records do not reflect the services performed because the documents do not mention a resident providing care. The report alleges that the doctor removed all references to residents in the documentation solely to obtain compensation for these visits.

The university’s provost decided that the university needed to discipline the doctor for altering the medical records, most probably a prudent decision.

Disciplinary Actions.

The provost informed the doctor in January 2019 that university termination proceedings would begin. However, it is alleged that he did not follow the correct termination procedures. The provost decided to investigate further while suspending the doctor from clinical care pending the investigation’s outcome.

After this, the provost filed a Statement of Charges against the doctor, which began the administrative process to terminate tenured faculty. In the Statement of Charges, the provost claimed the doctor stole from the University of Kentucky, falsified medical records by claiming he provided services that a resident provided, caused the university to submit false claims to Medicare and Medicaid, and encouraged a colleague to behave similarly.

The doctor resigned and sued the university and university officials on multiple grounds, including the defamation claim against the provost for his four statements in the Statement of Charges.

Legal Proceedings.

The provost filed a motion for summary judgment for qualified privilege. Qualified privilege protects a speaker where the communication is one in which the party has an interest and it is made to another interested party.

In employment, qualified privilege applies to internal discussions and communications necessary to a company’s proper function and law enforcement. This protection will apply despite a statement’s falsity if the public interest in detecting wrongdoing outweighs the private interest for defamation if the suspicions are made in good faith.

Privilege can be overcome by showing actual malice and falsity in a statement. It is the burden of the plaintiff to defeat the assertion of qualified privilege. So, in this case, the doctor has to show that the provost’s four statements are false and were made maliciously.

In the present proceeding, the judge is not deciding if the statements are defamatory. The judge is only deciding if a jury could find the statements defamatory and whether to grant summary judgment in favor of UK.

The judge granted summary judgment in favor of the UK provost on three of the allegedly defamatory statements: 1) That the doctor falsified medical records, 2) That the doctor caused the university to submit false claims to the federal government, and 3) that the doctor influenced another faculty member to do the same.

Federal courts grant summary judgment if the moving party does not dispute a material fact. The moving party is entitled to judgment if there is no dispute between the parties. The judge found no disagreement with the statement that the doctor falsified medical records.

For the statement that the doctor caused the college to submit false claims to the government, the doctor could not overcome the qualified privilege that the provost had as a matter of law. The doctor failed to show that the provost knew or should have known that the allegation was false or that the provost spoke maliciously. Therefore, the qualified privilege stood, and that claim was dismissed.

The doctor also failed to show that the provost’s statement that the doctor influenced a colleague was false. Therefore, the doctor was also unable to defeat the qualified privilege for that statement.

The judge decided that the plaintiffs introduced sufficient evidence for a jury to decide whether he could defeat qualified privilege for the claim that he stole from the University of Kentucky. This evidence included the testimony of four other UK dentists stating that the doctor should have been designated as the treatment provider, not the residents. This means that it could be argued that the funds were earned by the plaintiff doctor and not stolen by him.

Evidence was also introduced to show that the provost recklessly disregarded the possibility that the statement was false. There was no evidence that the doctor failed to participate in caring for the patients at issue. All evidence showed that he did treat the patients with a resident. Because of this, the jury could conclude that he was entitled to the compensation and, therefore, did not steal it.

The judge denied summary judgment for the UK provost regarding the statement that the doctor stole from the University of Kentucky. However, summary judgment was granted in favor of the UK provost on the other three defamation claims dismissing them.

Click here to read the Memorandum Opinion and Order on our website.

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

At the Health Law Firm we represent dentists and oral surgeons, resident physicians and fellows, and other health professionals. We represent them in legal disputes and disciplinary cases against their universities and residency programs, in investigations and complaints against their licenses, in clinical privileges matters and peer review hearings, in administrative hearings and in complex litigation. We litigate cases in state and federal courts and in administrative forums. We have a great deal of experience in representing physicians against universities, medical schools, and graduate medical education programs. The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians in investigations complaints before the board of dentistry and board of medicine.

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

Sources:

Cunningham v. Blackwell, CIVIL 3:20-cv-00008-GFVT-EBA (E.D. Ky. Jul. 11, 2023)
“U.S. Court in Kentucky Allows Physicians Defamation Claim to go Forward in Termination Dispute.” American Health Law Association Health Law Weekly. (21 July 2023). https://www.americanhealthlaw.org/content-library/health-law-weekly/article/7db3086c-db3c-4f85-bad7-88802f937f14/U-S-Court-in-Kentucky-Allows-Physician-s-Defamation

About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice.

Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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

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DOJ Files False Claims Suit Against Nursing Homes Over “Substandard Services and Nonexistent” Care

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

On June 15, 2022, the U.S. Department of Justice (DOJ) announced it has sued three nursing homes in Ohio and Pennsylvania, citing their “grossly substandard skilled nursing services.” The False Claims Act (FCA) complaint against the American Health Foundation (AHF), its affiliate AHF Management Corporation, and three nursing homes alleges the facilities fraudulently billed the Centers for Medicare & Medicaid Services (CMS) for often “nonexistent care.”

According to the complaint, all three AHF nursing homes not only provided substandard nursing home care services that failed to meet required standards of care but also did not maintain adequate staffing levels between 2016 and 2018.

Click here to view the complaint filed by the DOJ in the U.S. District Court for the Eastern District of Pennsylvania.

FCA Violations For “Substandard or Nonexistent Care.”

The government alleged AHF Management and its entities violated the FCA stemming from reimbursements for “grossly substandard” care provided at the Cheltenham, Wilmington Place, and Samaritan nursing homes.

“The defendants knowingly submitted, or caused the submission of, false claims to Medicare and Medicaid for nursing home care and services that were blatantly substandard or nonexistent,” the complaint read. “The Medicare and Medicaid programs provided reimbursement for the claims, but these payments were by mistake as CMS didn’t know the true and full extent of the defendants’ failure to provide patients with proper treatment and care.”

Alleged Patient Conditions and Mistreatment.

Examples of the appalling conditions described in the complaint included housing elderly and medically vulnerable patients in “pest-infested” buildings whose belongings were often stolen; giving residents unnecessary medications, including antibiotic, anti-psychotic, anti-anxiety, and hypnotic drugs; subjecting residents to verbal abuse; neglecting to provide residents with activities or stimulation, and failing to provide needed psychiatric care.

Additionally, the complaint outlines the suicide of a resident who was admitted with a history of self-harm and was later hospitalized after slashing his wrists but still was not provided psychiatric services. Tragically, just weeks after readmission, the resident committed suicide by hanging himself from a bedsheet in a shower room, justice officials said.

“Nursing homes are expected to provide their residents, which include some of our most vulnerable individuals, with quality care and to treat them with dignity and respect,” said Assistant Attorney General Brian M. Boynton, head of the DOJ’s Civil Division in a statement. He continued, “the department will not tolerate nursing homes, or their owners or managing entities, who abdicate these responsibilities and seek taxpayer funds to which they are not entitled.”

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

The United States’ complaint stems from an investigation that the DOJ initiated as part of its “National Nursing Home Initiative.” The department launched the initiative in March 2020 to identify and investigate nursing homes that provide grossly substandard care.

Click here to learn more about the Justice Department’s nursing home initiative.

The case is United States v. American Health Foundation Inc., case number 2:22-cv-02344, in the U.S. District Court for the Eastern District of Pennsylvania.

Contact Health Law Attorneys Experienced in Handling False Claims Act (FCA) Violations, Investigations, and other Legal Proceedings.

The attorneys of The Health Law Firm represent healthcare providers in defending audits and investigations by the Department of Health and Human Services, the Department of Justice, The Drug Enforcement Administration (DEA), the Florida Department of Health (DOH), Medicaid Fraud Control Unit (MFCU), state boards of medicine, state boards of pharmacy, and state boards of nursing. They also represent health professionals and providers in administrative litigation (state and federal) and civil litigation (state and federal). They represent physicians, nurses, medical groups, nursing homes, home health agencies, pharmacies, dentists, pharmacies, assisted living facilities, and other healthcare providers and institutions in recovery actions and termination from Medicare and Medicaid Programs.

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

Sources:

D’Annunzio, P.J. “Feds Hit Nursing Home With FCA Suit Over ‘Nonexistent’ Care.” Law360. (June 15, 2022). Web.

Marceas, Kimberly. ‘Grossly substandard’ care leads to False Claims charges for Ohio-based nursing home operator. McKnights Long Term Care News. (June 16, 2022). Web.

“Nursing Homes Face DOJ False Claims Suit Over Standards of Care.” Bloomberg Law. (June 15, 2022). Web.

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

In representing nurses and other licensed health professionals, we constantly discuss positive drug screenings, usually from employer-ordered drug testing, with our clients. These clients include nurses, pharmacists, dental professionals, mental health counselors, therapists, etc. Often these individuals need to remember that if they apply for a job with a new employer or are working for a large corporation or the government, they are subject to employer-ordered drug screenings. Most problems arise when the professional has applied to a hospital or a placement agency for work in a hospital and they must submit to a pre-employment drug test.

The client often contends that the result is a false positive and that some other substance must be responsible for it.

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

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

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

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

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

Following is a discussion of substances that can cause a false positive for amphetamines on a urinalysis drug test. This material comes from an article in Case Reports in Psychiatry published in 2013. (Ref. 1)

Many prescription pharmaceuticals and over-the-counter (OTC) medications have been previously reported in the literature to cause a false-positive result for amphetamines on urine drug screens. Many OTC medications have been reported in scientific literature to produce false positives for amphetamines on urine drug screenings, chiefly antihistamines.

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

Prescription Medications Documented as Mimicking Amphetamines.

Prescription medications known to have mimicked amphetamines on testing include antipsychotics and antidepressants. (Refs. 1 & 2)

The prescription medications known to cause false-positive amphetamine urine drug screen include fluoxetine, selegiline, ranitidine, trazodone, nefazodone, brompheniramine, phenylpropanolamine, chlorpromazine, promethazine, ephedrine, methamphetamine, and labetalol. (Refs. 2-5) However, the fact that the individual taking the drug test might have a prescription for one of these might cause the employer to disqualify the employee or potential employee from consideration for the job.

Bupropion (an atypical antidepressant that inhibits norepinephrine and dopamine re-uptake), is a drug used to treat depression and smoking cessation, but may also be used off-label to treat ADHD. It has also been documented as causing false positive results for amphetamines on drug screenings. (Ref. 6)

The drug atomoxetine has metabolites that are similar to those of amphetamines (phenylpropan-1-amine verses phenyl-propan-2-amine). This could also result in a false positive on a urine drug screen. (Ref. 1)

Other Discussions in Future Blogs.

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

Contact Experienced Health Law Attorneys in Matters Involving PRN or IPN.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses and other health professionals in matters involving PRN or IPN. Our attorneys also represent health providers in Department of Health investigations, before professional boards, in licensing matters, and in administrative hearings.

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

References:

1. Fenderson JL, Stratton AN, Domingo JS, Matthews GO, Tan CD. Amphetamine positive urine toxicology screen secondary to atomoxetine. Case Rep Psychiatry. 2013;2013:381261. doi: 10.1155/2013/381261. Epub 2013 Jan 30. PMID: 23424703; PMCID: PMC3570929.

(Accessed on May 20, 2023.)

2. Brahm NC, Yeager LL, Fox MD, Farmer KC, Palmer TA. Commonly prescribed medications and potential false-positive urine drug screens. Am J Health Syst Pharm. 2010 Aug 15;67(16):1344-50. doi: 10.2146/ajhp090477. PMID: 20689123.

3. Vincent EC, Zebelman A, Goodwin C, Stephens MM. Clinical inquiries. What common substances can cause false positives on urine screens for drugs of abuse? J Fam Pract. 2006 Oct;55(10):893-4, 897. PMID: 17014756.

4. Rapuri SB, Ramaswamy S, Madaan V, Rasimas JJ, Krahn LE. ‘Weed’ out false-positive urine drug screens. Current Psychiatry. 2006;5(8):107–110. [Google Scholar]

5. Moeller KE, Lee KC, Kissack JC. Urine drug screening: practical guide for clinicians. Mayo Clin Proc. 2008 Jan;83(1):66-76. doi: 10.4065/83.1.66. Erratum in: Mayo Clin Proc. 2008 Jul;83(7):851. PMID: 18174009.

6. Reidy L, Walls HC, Steele BW. Crossreactivity of bupropion metabolite with enzyme-linked immunosorbent assays designed to detect amphetamine in urine. Ther Drug Monit. 2011 Jun;33(3):366-8. doi: 10.1097/FTD.0b013e3182126d08. PMID: 21436763.

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

“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.

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

On May 18, 2023, the United States Court of Appeals for the Sixth Circuit affirmed a U.S. district court’s decision to deny U.S. Nursing Corporation a new trial. The appellate court stated that the opposing counsel’s closing argument and the erroneous preclusion of evidence had no substantial effect on the trial’s outcome; thus, there was no reversible error.

The First Lawsuit.

The original lawsuit filed in state court concerned a patient suing Appalachian Regional Healthcare, Inc., for exacerbating his spinal injury. He claimed that a nurse transported him from a car into the emergency room without first stabilizing and immobilizing him, which caused further damage. When the incident occurred, the nurses on staff were two employees of Appalachian Regional and one supplied by U.S. Nursing Corporation to the hospital.

The court granted a motion that dismissed the Appalachian Regional nurses as defendants because no evidence in the record alleged that they moved the patient. As the trial neared, the court granted another motion prohibiting the parties from introducing evidence that the Appalachian Regional nurses moved the patient from the truck into the emergency room.

This earlier state court lawsuit concluded with Appalachian Regional Healthcare paying $2 million in settlement and incurring $823,522.71 in legal fees.

It is important to note that when U.S. Nursing supplied its nurse to Appalachian Regional, they entered into an agreement that stated U.S. Nursing would indemnify and defend Appalachian Regional for the negligence of any of its employees assigned to Appalachian Regional. The settlement was reached, Appalachian Regional Healthcare demanded that U.S. Nursing indemnify it, but the staffing company refused to do so. In response, Appalachian Regional Healthcare, Inc., sued U.S. Nursing for the $2,823,522.71 state court settlement it paid.

The First Appeal.

In its first appeal, U.S. Nursing argued that the opposing counsel made an inappropriate closing statement when they stated no evidence showed the Appalachian Regional Healthcare nurses moving the patient and that U.S. Nursing had not argued that such evidence existed. U.S. Nursing claimed this statement was inappropriate because it was prohibited from admitting evidence that showed Appalachian Regional Healthcare nurses having moved the patient. The appellate court decided that U.S. Nursing did not have a full and fair opportunity to litigate the issue, so the appellate court remanded to the district court to determine if the error required a new trial.

The nurse staffing company argued that it was incorrectly prohibited from introducing evidence regarding the other nurses on duty and the possibility that they could have been the ones to move the patient. U.S. Nursing also argued that the opposing counsel exploited the court’s error in their closing statements, though the district court never addressed this claim. However, the appellate court asserted that the evidence excluded would not have caused a different outcome at trial, so no new trial was granted.

The Second Appeal.

In its second appeal, U.S. Nursing argued that the district court abused its discretion when it determined the evidentiary error did not affect the trial. The Sixth Circuit Court of Appeals found that the excluded evidence did very little to support U.S. Nursing’s argument, and excluding this evidence did not affect U.S. Nursing’s substantial rights. However, the court stated that the opposing counsel misled the jury with their statements. The remarks did not constitute an error significant enough to warrant a new trial since Appalachian Regional Healthcare, Inc., was highly likely to prevail, despite counsel’s comments.

Click here to read the order in full.

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

The Health Law Firm’s attorneys routinely represent nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings.

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

Source:

Muyskens, Carolyn. “Full 6th Circ. Won’t Hear Staffing Co.’s Indemnification Row.” Law360. (22 June 2023). https://www.law360.com/health/articles/1691718?nl_pk=0cbd4c0b-c6c8-416a-9e67-b4affa63b102&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-06-23&nlsidx=0&nlaidx=8

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

Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.

“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.

By The Health Law Firm|2024-03-14T09:59:20-04:00September 21, 2023|Categories: Health Facilities Law Blog|Tags: attorney for nurses, board of nursing hearing attorney, board of nursing hearing defense attorney, board of nursing hearing lawyer, Board of nursing legal defense representation, board of nursing legal representation, board of nursing license defense lawyer, certification hearing defense attorney, certified registered nurse anesthetist CRNA defense lawyer, certified registered nurse anesthetist CRNA hearing attorney, certified registered nurse anesthetist CRNA investigation and hearing lawyer, defense attorney for board of nursing hearing, defense attorney for board of nursing investigation, defense lawyer for department of health investigation, defense lawyer for nursing investigation, health care investigation defense attorney, health professional defense lawyer, healthcare professional license defense attorney, lawyer to defend nurse against charges, legal representation for certified registered nurse anesthetist CRNA, legal representation for DOH and DORA complaint, legal representation for Florida DOH and DORA investigations, legal representation for healthcare investigations, legal representation for healthcare professionals, legal representation for nurse, legal representation for nurse practitioner, license revocation legal representation, nurse defense attorney, nurse defense counsel, nurse practitioner investigation and hearing defense lawyer, nurse practitioner NP defense lawyer, nurse practitioner NP hearing attorney, nursing board defense attorney, nursing board defense legal representation, professional licensure defense attorney, representation for nurse licensure matters, representation for nurses, reviews of The Health Law Firm, The Health Law Firm reviews|Comments Off

Dental Practice Pays $23,000 For Potential HIPAA Privacy Violations Involving Yelp Posts

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

On December 14, 2022, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) settled with New Vision Dental (NVD) over a potential HIPAA Privacy violation. The California-based dental practice paid $23,000 to OCR and agreed to implement a corrective action plan after allegedly including protected health information (PHI) in its responses to reviews on Yelp.

The Complaint and Investigation.

On November 29, 2017, the Office for Civil Rights (OCR) received a complaint alleging New Vision Dental had posted responses to several unfavorable reviews by patients on Yelp and frequently disclosed confidential protected health information (PHI) in its responses. For example, in some posts, patients were allegedly identified, and NVD revealed their full names when the patient may have only chosen to use a made-up name on the platform. Other information allegedly posted included detailed information about the patient’s visits, treatment, and health insurance when the patient had not posted that information publicly.

The federal agency’s investigation found potential violations of the HIPAA Privacy Rule, including impermissible uses and disclosures of PHI and failures to provide adequate Notice of Privacy Practices and implement Privacy policies and procedures. “This latest enforcement action demonstrates the importance of following the law even when using social media. Providers cannot disclose protected health information of their patients when responding to negative online reviews. This is a clear ‘NO,’” said OCR Director Melanie Fontes Rainer in a statement.

In addition to the settlement, NVD agreed to implement a corrective action plan (CAP) that will be monitored for two years by OCR. As part of its CAP, the dental practice agreed to develop, revise, and maintain written policies and procedures to comply with federal privacy and security standards. All workforce members will also receive training on those policies and procedures, and NVD must remove all social media postings that include PHI.

The resolution agreement and CAP can be viewed here.

Guidelines for Appropriate Use of Social Media and Social Networking.

Healthcare professionals are discouraged from interacting with current or past patients on personal social networking sites and should never, under any circumstances, reveal personal information about the patient or the patient’s treatment or care. Online interaction with patients should only occur when discussing the patient’s medical treatment within the physician-patient relationship and with written, signed consent by the patient to use e-mail or other online services for such messaging. These interactions should never occur on personal social networking or social media websites.

Patient privacy must always be protected, especially on social media and social networking websites. Breaches in patient confidentiality could harm the patient and violate federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996 and applicable state privacy laws.

Failure to Comply With HIPAA Can Result in Both Civil and Criminal Penalties.

This penalty was the 21st financial penalty OCR imposed in 2022 to resolve HIPAA violations, more than in any other year since it was given the authority to enforce HIPAA compliance. With the increased popularity and availability of social media platforms also comes an increase in potential privacy violations. To read a previous blog I wrote on this, click here.

If Notified of a HIPAA Investigation or Audit, Consult an Experience Health Law Attorney Immediately.

If you receive notice that you have a HIPAA Privacy Complaint, are suspected of a HIPAA breach, or are subject to a HIPAA audit, consult an experienced healthcare attorney immediately. There are many technicalities to these laws and regulations, and what may initially seem like a violation may be proven to be nothing. Many defenses can be raised, and often a complaint may be dismissed by the OCR once the correct facts are shown to it by your attorney.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, nurses, and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Alder, Steve. “OCR Fines California Dental Practice for PHI Disclosures on Yelp.” HIPAA Journal. (December 14, 2022). Web.

McKeon, Jill. “OCR Settles Potential HIPAA Violation After Dental Practice Discloses PHI on Yelp.” Health Care It News. (December 14, 2022).

Health News Weekly. “California Dental Practice Pays $23,000 to Resolve Potential HIPAA Violations Involving Social Media Posts.” AHLA. (December 16, 2022). Web.

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

Protecting Your Pharmacist License: Locate an HPSO or Pharmacists Mutual Insurance Attorney to Defend You in a Complaint

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

All healthcare professionals, including pharmacists and pharmacies, should know the importance of good professional liability insurance. These policies protect them from the financial burden of legal expenses in case of any complaints or lawsuits filed against them. Healthcare Providers Service Organization (HPSO) Insurance and Pharmacists Mutual Insurance Company (PMIC) are both popular insurance companies that offer professional liability insurance to pharmacists and their pharmacies at a low and affordable rate. However, many pharmacists may need to realize the full extent of coverage that their policy offers.

Under a policy with either insurance company, the insurer will pay the legal fees and other costs related to your defense or legal representation. However, you must seek out and retain the appropriate attorney.

Essential Things to Look For When Retaining an Attorney to Defend You.

1. The primary qualification for any attorney you hire to represent you should be their experience working with healthcare professionals in the same field, such case, pharmacies and pharmacists. Suppose the attorney is unfamiliar with the pharmacy practice, the type of legal proceeding you have, or the board of pharmacy, Division of Regulatory Agencies (DORA) or the health department. In that case, it may be difficult for that attorney to represent you properly.

2. If you consult with an attorney who claims they will help you make a statement to the investigator or assist you in the investigation but will not agree to appear and represent you in hearings, this is the wrong attorney. You need an attorney who can represent you from start to finish.

3. Retain an attorney who accepts your insurance, whether it’s HPSO Insurance, Pharmacists Mutual Insurance Company (PMIC), CPH & Associates Insurance, Philadelphia Insurance, Firemans Fund, or another national company. This will ensure that you have an attorney who will give you the lower rates the insurance company has negotiated and establish a good working relationship with your insurance company. If an attorney with our firm cannot represent you, we will try to find you an attorney who will.

4. You should also retain the services of an attorney who has appeared before your professional board or licensing authority in investigations and hearings, especially in formal administrative hearings.

5. Often, you will encounter an attorney who only wants you to accept a consent order, stipulation, or settlement agreement. Remember that these are all merely “plea bargains,” and you will be pleading “guilty” to whatever offenses are charged. This is the easy way out. Often, the easy way is not the right way. If you plead guilty, then, from that point on, you are guilty. In most cases, however, you will be innocent of the charges and need a formal administrative hearing to prove this.

6. You don’t necessarily need an attorney who resides in your city, state, or location. Your attorney can complete the majority of casework by telephone, e-mail, Zoom video, or other means. You usually have only one meeting or hearing; depending on what type of hearing it is, it could be located in various locations. Our attorneys will travel to those locations for meetings and hearings.

7. Beware of attorneys who hold themselves out in Internet advertising as health attorneys or professional licensed defense attorneys but are really some other type of attorneys. We see this a lot from medical malpractice attorneys, criminal defense attorneys, and attorneys who sue insurance companies. Be sure you get an attorney who concentrates their practice on defending those in the pharmacy specialty and board of pharmacy complaints, investigations, and formal and informal administrative hearings.

8. If you can’t find an attorney to meet your immediate needs through our firm or an Internet search, you may contact your insurance company or professional association and ask if they have a list of attorneys who can do the legal work you require.

For example, you may reach Healthcare Providers Service Organization (HPSO) at (800) 982-9491; you can reach Pharmacists Mutual Insurance Company (PMIC) at (800) 247-5930; you can reach CPH & Associates at (800) 875-1911 or (312) 987-9823.

When negative accusations arise that could affect a pharmacist’s license or the license of a pharmacy, having insurance is essential. This coverage offers a strong defense against potential harm and covers a variety of situations, including subpoenas for record release, depositions, and violations of HIPAA or medical confidentiality.

Connect With Health Law Attorneys Experienced in Investigations of Pharmacists and Pharmacies.

The attorneys of The Health Law Firm provide legal representation to pharmacists, pharmacies, prescribing physicians, dispensing physicians and nurse practitioners, and other health providers in pharmacy board complaints and investigations, Department of Health (DOH) investigations, Colorado DORA investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid audits, Medicaid Fraud Control Unit (MFCU) investigations, Food and Drug Administration (FDA) actions, and other types of investigations of pharmacies and pharmacists.

In cases in which the pharmacist or pharmacy has professional liability insurance or general liability insurance that provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general and business litigation matters, Medicaid and Medicare complaints and hearings, and DEA Orders To Show Cause (OTSC) hearings.

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.

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

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.

By The Health Law Firm|2024-03-14T09:59:20-04:00September 11, 2023|Categories: Health Facilities Law Blog|Tags: administrative complaint defense attorney, administrative complaint defense lawyer, administrative hearing defense attorney, administrative hearing defense lawyer, administrative hearing defense legal counsel, Board of Pharmacy complaints, Board of Pharmacy defense, Colorado Board of Pharmacy defense lawyer, Colorado Division of Regulatory Agencies (DORA) defense attorney, Colorado Division of Regulatory Agencies (DORA) defense lawyer, Colorado HPSO defense attorney lawyer, defense lawyer for pharmacists, finding HPSO defense lawyer, Florida Board of Pharmacy defense lawyer, Florida Colorado Louisiana D.C. health law defense attorney, Florida Department of Health (DOH) attorney, Florida HPSO defense attorney lawyer near me, Healthcare Providers Service Organization (HPSO) Insurance defense attorney, HPSO deposition defense coverage, legal representation for HPSO matters in Colorado Louisiana Florida and D.C., legal representation for HPSO matters in Florida, Louisiana and Florida Department of Health (DOH) defense lawyer, medical license defense, pharmacist complaint cases, pharmacist defense lawyer, pharmacy complaint cases, pharmacy defense attorney lawyer, representation for Board of Pharmacy investigations, representation for Florida Colorado Division of Regulatory Agencies (DORA) complaint investigations, representation for Florida Department of Health (DOH) and Colorado DORA complaint investigations, representation for licensed mental health counselors (LMHCs) and licensed professional counselors (LPCs), representation for professional liability insurance cases, reviews of The Health Law Firm attorneys, The Health Law Firm reviews|Comments Off

Florida Nursing Students Sue College For Deceptive NCLEX Scheme

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

On December 2, 2022, four nursing students from HCI College (formerly Health Career Institute) in Florida filed a federal class action lawsuit against the school. The students claim the school conducted a “malicious scheme” to block 95% of students from graduating and taking the National Council Licensure Examination (NCLEX). The lawsuit also accuses the nursing school of misrepresenting its accreditation status and NCLEX passage rates.

Critical Details Of The Lawsuit.

The class action, brought by four named plaintiffs, was filed in Federal Court in West Palm Beach. The plaintiffs are demanding to have their loans canceled, and payments refunded and are seeking an injunction to allow all students to take the NCLEX exam.

The suit claims that HCI College misrepresented its accreditation status and lied about its NCLEX pass rates. It also states that it deliberately attempted to prevent students from graduating and taking the NCLEX by unfairly dropping them from the program or forcing them to pay to retake classes that HCI argued were non-transferrable. According to the filing, the school is accused of only graduating students who showed the highest likelihood of passing the NCLEX, thus fraudulently inflating the program’s pass rates.

A History of Alleged Questionable Conduct.

In 2018 and 2019, HCI was put on probation by the Florida Board of Nursing for having NCLEX pass rates below state standards for nursing programs. When they failed to obtain accreditation, the Florida BON terminated the nursing program on August 7, 2019.

Rather than attempt to improve the nursing program and apply for reinstatement, the school allegedly created a “new” program and obtained a different state identification number. They used the same curriculum and same instructors as before, but the “new” program allowed the poor pass rates of prior graduates to be wiped clean.

Then, the college was able to use the guise of this “new” program to mislead students and hide their termination status, lack of accreditation, and the dismal NCLEX pass rates of the “old” program.

The bottom line: creating a “new” program would theoretically buy the college five more years to meet BON accreditation requirements. Despite this, HCI continued to charge students approximately $50,000 in tuition and fees to complete their unfortunately subpar ASN program. Click here to view the plaintiff’s class action and learn more about this case.

HCI College disputes these claims and alleges a disgruntled former faculty member initiated the suit. You can read a statement issued on their website on the status of their Florida accreditation and the fake nursing diploma scheme here.

Key Takeaways From This Case.

This lawsuit and the recent fake nursing diploma scams in Florida highlight the adverse effects of insufficient regulation and oversight in Florida’s nursing education programs. Many nurses and nursing students contact our law firm for legal representation who are in very similar situations to the ones who brought the class action suit.

One must remember that Florida is a hotbed of fraud. Florida laws have always been slanted toward protecting fraudsters and con men. Perhaps the members of the Florida Legislature seem to have the attitude of “There but for fate go I.” Who knows? Corporate laws that allow the creation of shell corporations and companies and allow their owners to remain anonymous abound in Florida. It has always, in recent memory, been known as a “debtor’s haven” where people who owe others money could flee in order to avoid being held civilly liable for their debts.

Don’t Wait! Contact Health Law Attorneys Experienced in Investigations Against Nurses and Nursing Students.

The attorneys of The Health Law Firm provide legal representation to nurses, nursing students, Advanced Practice Registered Nurses (APRNs), CRNA’s and other health professionals in Department of Health (DOH) investigations, license defense hearings, Department of Justice (DOJ) investigations, board of nursing investigations, formal and informal administrative hearings, emergency suspension orders, emergency restriction orders, appeals and other types of investigations of health professionals and providers.

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:

Roberts, Ayla. “4 Nursing Students Sue Florida College For Alleged NCLEX Scheme.” Nurse.org. (January 23, 2023). Web.

Bean, McKenzie. “Students sue Florida nursing school, alleging they were blocked from NCLEX.” Becker’s Hospital Review. (February 3, 2023). Web.

“4 Nursing Students Sue Their School Over Deceptive Scheme.” Nurse News Today. (February 13, 2023). Web.

Press Release. “Nursing Students Sue Florida For-Profit School, HCI College, for Deceitful Scheme to Block Students From Taking Licensing Exam and Trap Them in Debt.” The Project on Predatory Student Lending. (February 3, 2023). Web.

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

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

To read the indictment, click here.

On June 14, 2023, the previous Harvard morgue manager, his wife, and three others were indicted on charges of conspiracy and interstate transport of stolen goods in relation to their scheme of selling body parts from the Harvard medical school morgue.

Following this indictment, two proposed class actions and a third claim have been filed against Harvard alleging it was negligent in its supervision of the morgue. To learn more, read my previous blog.

Similar Cases.

While grotesque, this is not the only case of its kind. In January 2023, a Colorado funeral home owner was sentenced to the maximum of 20 years in federal prison due to her defrauding relatives of the dead by dissecting and selling body parts from 560 corpses. Another example of this illegal misconduct is that of the mortuary worker in Arkansas who would send body parts to a man in Pennsylvania, this man (not a Florida man) was charged with abuse of a corpse, receiving stolen property, and dealing in proceeds of unlawful acts.

And how could we fail to mention the criminal conduct of a young Dr. Frankenstein, who sent his medical assistant Igor (pronounced Eye-gōre) to purloin the brain of Abbie Normal and used it for his own salacious purposes.

Harvard’s Options.

Lawyers involved in similar cases to those above predicted that Harvard may fight the liability charges and pursue a “rogue employee” defense. Harvard may claim that it is not responsible for the criminal actions of an employee acting out of the scope of their employment. It could also argue that it is not responsible for an employee’s action that was not reasonably foreseeable. Due to this, Harvard could file a motion to dismiss. In fact, I, myself, have “predicted” this.

To succeed, if it does not win a dismissal, Harvard will have to show that it took all reasonable steps to ensure that the bodies were being used only for their intended educational use. This is due to Massachusetts recognizing liability for negligence because of lax security. Examples of such reasonable steps could be a background check on a prospective morgue manager before employment, established policies and procedures forbidding such practices, a system of tracking the human remains, or having a direct supervisor for the morgue manager.

The Harvard case differs from other cases mentioned above due to the class actions being pursued against it. Since only some members of the class received the same injuries or damages, it would be hard to argue for a class so large. A legal question about the class’s rights also arises in this instance because the families agreed to transfer the remains as an anatomical gift to a third party (Harvard). Their right to a say in the disposition of the bodies may be limited or end at the point of the transfer. Though, the answer to this question may lay in the contract between Harvard and the families if it articulates a case for the release of the bodies. The contents of such a contract are unknown to the public at this time.

Harvard, show us the contract!

One alarming thought: could there be legal negligence on the part of the lawyers drafting the Harvard donation contract? I’ll be the judge of that one, I’m sure.

If Harvard does fight the liability claims, the plaintiffs could seek to add Harvard officials who oversaw the activities of the morgue, where the manager was said to be the only employee. These individuals may make similar arguments to those mentioned above. All this being said, there have been no updates or responses in the case of Harvard aside from its public statement condemning the manager’s actions as an abhorrent betrayal of trust.

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

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

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

Sources:

Associated Press. “Former Harvard Morgue Manager Stole Brains, Skin, and Other Body Partys to Sell Them, Indictment Say.” (14 June 2023). https://www.usnews.com/news/us/articles/2023-06-14/harvard-medical-school-morgue-manager-4-others-indicted-in-theft-sale-of-human-remains

Manganis, Julie and Brian Dowling. “Harvard May Fight Liability in Body Parts Sale Scandal.” Law360. (5 July 2023). https://www.law360.com/health/articles/1696291?nl_pk=0cbd4c0b-c6c8-416a-9e67-b4affa63b102&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-07-06&nlsidx=0&nlaidx=3

Shiffman, John. “Former Colorado Funeral Home Owner Sentenced to 20 yrs for Selling Body Parts.” Reutuers. (4 January 2023). https://www.reuters.com/world/us/former-colorado-funeral-home-owner-sentenced-20-yrs-selling-body-parts-2023-01-04/

Sloop, Hope. “Mortuary worker in Arkansas is indicted for selling stolen body parts to tattoo-covered Pennsylvania man she met on Facebook for $11K.” Daily Mail. (30 April 2023). https://www.dailymail.co.uk/news/article-12031285/Ex-mortuary-worker-Arkansas-indicted-selling-11K-worth-body-parts-Facebook.html

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

Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.

“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.

By The Health Law Firm|2024-03-14T09:59:23-04:00August 15, 2023|Categories: Health Facilities Law Blog|Tags: clinical investigator fraud defense lawyer, clinical research misconduct investigation defense attorney, complex litigation defense attorney for medical professionals, defense of misconduct in science allegations, Department of Health DORA investigation defense attorney, institutional review board (IRB) investigation defense attorney, legal defense attorney for healthcare professionals, legal defense representation for DOH DORA complaint, legal representation for medical investigations defense attorney, legal representation in complex medical litigation, medical research fraud defense attorney, misconduct in science defense attorney, NIH grant research grant fraud defense attorney, physician defense attorney, principal investigator fraud defense attorney, reviews of The Health Law Firm attorneys, The Health Law Firm reviews|Comments Off

Call (407) 331-6620 or Toll-free (888) 331-6620

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