Department of Health Quarterly Report Released Covering Through March 2021

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

The Florida Department of Health’s Quarterly Performance Report (QPR) for the Third Quarter of Fiscal Year 2020-2021, was recently released. It provides information and statistics on actions involving licensed health professionals through March 2021.

Scope of the Florida Department of Health’s Control.

First, note that Florida’s Department of Health regulates 22 health care practitioner boards and four health professional councils. This makes it one of the largest such organizations in the country. Second, this also means that the practice of health care in Florida is one of the most heavily regulated anywhere in the U.S., with each professional board, as well as the Department of Health, having specific Florida statutes governing their professions, as well as the different boards each enacting different sets of administrative rules regulating those professions.

The Quarterly Performance Report contains financial and statistical information concerning licensed health professionals.

Key Emphasis on Unlicensed Practice of Health Care Professions.

The key emphasis of this report is the Department of Health’s ongoing efforts to reduce and eliminate the unlicensed practice (UP) of health care professions in the state. This is often referred to generically as the “unlicensed practice of medicine,” but it applies to any health profession for which a license in Florida is required, for example, massage therapy.

Large Number of Health Care Professionals in Florida.

The Report points out that the Department of Health issued 29,651 professional licenses to new applicants just in the Third Quarter of the fiscal year, from January 1, 2021, through March 31, 2021.

The Medical Quality Assurance (MQA) division of the Department of Health issued 102 cease and desist orders to unlicensed individuals whose unregulated and illegal activities were reported to it. It referred 98 complaints to law enforcement agencies for potential criminal violations.

The unlicensed practice of a health profession in Florida is a felony.

It would be interesting to imagine how many additional applicants there might have been for licensed and how many additional complaints and prosecutions for unlicensed practice there might have been if the COVID-19 pandemic hadn’t been in full bloom. The QPR shows overall enforcement support down for the Fiscal Year 2020-2021, undoubtedly because of this.

Which Professions Have Most Unlicensed Violations?

Although the QPR does not discuss this, from my own personal experience, the ere are three top runners: massage therapy, nursing, and dentistry; note, however, that this is my opinion, only.

It seems to me that there are many cases of mistaken unlicensed practice brought against massage therapists because of mistakes in identity by investigators. We have experienced cases where investigators arrest several different individuals of foreign origin who happen to be present at a massage establishment and accuse them of practicing there without a license when that person was only there visiting a friend or relative and did not touch any client. Often the visitor and even the licensed professionals there will speak little or no English, therefore being unable to clear up any confusion.

Dentistry is another profession where there is a great deal of unlicensed practice. Often this arises when an individual was a dentist in a foreign county and relocates to the U.S., but is unable to obtain a license. They may set up shop in a home or garage and hold themselves out to a certain group speaking the same foreign language, as able to provide skilled dental services. To me, the number of unlicensed practice cases I have encountered in this profession is largely due to the absence of qualified licensed dentists providing care in our communities, especially to the indigent and immigrant communities.

Charges of unlicensed practice of nursing often arise because of nurses who may have been trained abroad failing to make sure that everyone they work with refers to them as “medical assistants” or whatever other role they are filling. It is very common in doctors’ offices and medical practices to refer to anyone who assists the doctor in any way as “the nurse.” One must be careful if one is not a licensed nurse to correct this mistitling whenever it occurs. We have had multiple cases of a doctor’s competitor or a disgruntled patient filing a complaint that the doctor’s medical assistant was holding himself out to be a nurse when they were not.

To Read the entire DOH Third Quarterly Performance Report for 2020-2021, click here:

http://www.floridahealth.gov/licensing-and-regulation/reports-and-publications/_documents/qpr3-2021.pdf

Remember the Mission of the Florida Department of Health; It is Not to Help YOU.

The QPR emphasizes the same thing you will hear at every professional board meeting if you attend it. That is, the mission of the Florida Department of Health is to protect, promote, and improve the health of all people in Florida and to protect the public. It is not to advocate for or help any individual licensed health professional.

That is one of the reasons I continually tell licensed health professionals that if you want advice on what to do or how to do it legally, don’t call and ask the Department of Health.

First, there is no individual who is authorized to give you advice on what to do or not to do on behalf of any profession, board, or council. Second, there is no individual who is authorized to make decisions on behalf of any professional board or council. A professional board speaks when it meets, discusses an issue, and votes on that issue. That is how decisions are made; not by what one employee may think.

You may send all of your complaints and other hate mail to me at one of the addresses given below.

Contact Health Law Attorneys Experienced with Department of Health Matters and Investigations.

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 (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider

Our attorneys provide legal representation in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) investigations, 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.

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

Keywords: Department of Health investigation representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2021 The Health Law Firm. All rights reserved.

 

 

 

Many Adverse NPDB Actions Are Reported That Should Not Be; Here Are Examples

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
We are constantly being contacted by physicians, nurse practitioners and other licensed health professionals seeking to appeal adverse National Practitioner Data Bank (NPDB) reports.  Often, we find that an adverse report has been made when the matter should not have been.  Federal regulations and NPDB guidelines establish the types of incidents that are authorized to be reported to the NPDB.  When an employer or other organization makes an improper report, it should be challenged and removed.
Types of Matters That Are Not Authorized for NPDB Reports.
Following are some of the incidents for which we have seen adverse NPDB reports that were improperly made:
–Physician or nurse practitioner employed by hospital fired.
–Physician’s contract with a medical group or hospital terminated for cause.
–Hospital medical staff takes action against a physician or nurse practitioner requiring that individual to take continuing education courses on a certain subject.
–Physician’s clinical privileges are administratively suspended because of late medical records or notes.
–Physician or nurse practitioner has clinical privileges summarily suspended for less than 30 days while an investigation or inquiry occurs.
–Adverse action against or findings of substandard care made against an intern or resident physician are not reportable because they do not have clinical privileges.
–Withdrawal of an initial application for clinical privileges in order to avoid a denial (note: not a renewal application, an initial application).
–Adverse action a hospital takes based on the individual’s fees or advertising.
–Payment of a medical malpractice settlement because a hospital, nurse or different individual was negligent.
–Termination of clinical privileges because of inability to obtain board certification or failure to meet other eligibility criteria.
–Withdrawal of an initial application for a state license to avoid a denial (note: not a renewal application, an initial one).
–Resigning from or allowing membership in a professional association to expire before a final adverse decision by that association is made is not reportable (note:  this is unlike the situation from hospital clinical privileges or action by a state licensing board).
–Termination of clinical privileges or state license because of medical reasons.
There are many others. We see them all the time.
Improperly Reported to the NPDB?  Get a Lawyer and Challenge It!
If you are reported improperly to the NPDB, you need to retain the services of a good health lawyer experienced with NPDB issues.  An adverse NPDB report can follow you for life and can make future employment very difficult.  An experienced health lawyer will know exactly what to do to have the improper report removed.
Click here to read one of my prior blogs on how to fight back against adverse NPDB reports.
Don’t Wait Until It’s Too Late, Contact Experienced Health Law Attorneys.
The Health Law Firm attorneys routinely represent physicians, physician assistants (PAs), nurses, nurse practitioners (NPs), dentists and other health professionals in dealing with reports being made to the NPDB, disputing NPDB reports and appealing NPDB reports, hospital clinical privileges hearings, medical staff fair hearings, medical staff peer reviews. 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 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.
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.
“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 © 2024, George F. Indest III, The Health Law Firm. All rights reserved.
No part of this work may be reproduced in any form in any medium without the express written permission of the copyright holder.  The copyright holder reserves the exclusive right to have his name associated with this work.

A Criminal Record Can Prevent You from Obtaining Your License in Florida

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

Someone arrested for a criminal offense knows that it can lead to a criminal record that may or may not be on your record for the rest of your life. However, once you pay your fine and carry out any other disciplinary action the court has ordered, you expect the consequences to be over. In many cases, the arrest and offense can even be sealed or expunged so that it is no longer on your record. However, in the case of someone who desires to apply for a license in the health care field or who is already licensed, this is not the end of the consequences you will face.

For healthcare professionals, a criminal charge can mean being disqualified from obtaining a license or losing your license to practice. Conviction of certain criminal offenses may even mean exclusion from being a Medicare provider or termination from the state Medicaid Program, which can also be grounds for revoking your license. Criminal charges against a health professional can have serious and long-lasting consequences.

How Criminal Charges Impact Your Professional License.

Licensing authorities are charged by statute with protecting the general public, not the individuals they regulate. Most state laws regulating health practitioners include criminal convictions as one of the grounds for denial or discipline of a professional license. Some state laws (for example, Florida’s) allow the state licensing authority to impose discipline upon a nolo contendere (no contest) plea or even when adjudication is withheld or deferred by the court.

State regulatory authorities can and do impose discipline based on the facts underlying a conviction, even when the conviction itself is not directly related to the practice of a profession. For example, a conviction for driving under the influence (DUI) or reckless driving may raise the question with the licensing authority of whether the practitioner could be impaired or reckless while providing patient care. The licensing authority will likely investigate these matters and the facts underlying the offense to determine if the practitioner threatens the public.

Therefore, if you have been arrested for DUI, disorderly conduct, assault, or any other misdemeanor, you can anticipate that the state, the Department of Health (DOH), or the Department of Licensing and Regulatory Affairs will start an investigation. You must retain an attorney who can immediately defend your freedom during your criminal case and protect your livelihood during licensing proceedings.

Mandatory Report of Conviction of Felony or Misdemeanor Charge.

In the event of a conviction, this may trigger a required report to the state licensing board within a certain period. Some states only require a report at the time of renewal of the license. Other states require a report within thirty days of the disposition of the offense. Still others, like Florida, may have multiple actions the provider must take in such instances.

For example, certain licensed health professionals in Florida must maintain an online provider profile. Those who must maintain a profile in Florida include medical doctors, podiatrists, nurse practitioners, and chiropractors. State law requires that for any change in the information required on the profile (a conviction, for example), the profile must be updated within fifteen (15) days. In addition, Florida law requires a written report be made to the professional licensing board of any licensed health provider within thirty (30) days of the disposition of the offense.

Suppose you have been arrested and are facing felony or misdemeanor charges. In that case, you must seek the advice and experience of an attorney who can help you and your criminal defense attorney to analyze different outcomes to help protect your license.

Health professionals who have been arrested generally want their criminal cases resolved as quickly and quietly as possible. Unfortunately, they may inadvertently accept a plea arrangement that results in later severe discipline or revocation of their professional license. All health professionals and their criminal defense attorneys should consider the consequences of the practitioner’s license before accepting a plea arrangement and should consult with an experienced health law attorney. Click here to read one of our prior blogs for more information on this. 

Remember, your health profession is probably your only means of support. You must realize that you may need additional legal help from an experienced healthcare attorney to maintain it.

The disciplinary process is often long and extremely costly. The effects of discipline on your license can follow you for the remainder of your career and is publicly available to anyone who cares to look. If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you and your criminal counsel on the effects of a potential outcome on your license.

Contact Health Law Attorneys Experienced in Handling Licensure Matter and Disciplinary Matters.

The Health Law Firm routinely represents physicians, pharmacists, dentists, nurses, mental health counselors, social workers, and other health practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

To contact The Health Law Firm, 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 Ave., 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.

KeyWords: Health care license defense representation, professional license legal defense, representation for professional license suspension, reporting physician arrests and convictions, health care license defense attorney, medical license defense attorney, reporting criminal conviction for doctor or health professional, report arrest for physician or health professional, mental health counselor defense lawyer, representation for physician criminal charges, representation for nurse criminal charges, representation for dentist criminal charges, Department of Health (DOH) conviction report, misdemeanor offense physician lawyer, Department of Health (DOH) investigation defense attorney, DOH complaint investigation legal defense representation, DOH defense attorney, legal representation in DOH investigation, representation for license suspension, license revocation attorney, representation for health care professionals, legal representation for administrative hearing, representation for administrative appeals, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law defense attorney, Medicare exclusion defense attorney, Office of Inspector General (OIG) exclusion defense lawyer, legalrepesntatin in Office of Inspector General (OIG) exclusion, Office of the Inspector General (OIG) health care complaint, defense of relinquishment of DEA number, DEA order to show cause (OSC) hearing 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 © 2022 The Health Law Firm. All rights reserved.

By |2024-01-07T19:00:04-05:00January 9, 2024|Categories: Massage Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Types of Disciplinary Actions Taken By the Board of Massage Therapy

By Castillana F. Duvernay, J.D.

The Florida Board of Massage Therapy can take disciplinary actions against you and your massage establishment if you are not adhering to the rules and regulations set forth by the Board of Massage Therapy and the statutes that govern the practice of massage.

We see common themes and issues that arise at Board of Massage Therapy meetings. This blog will highlight some of these issues and provide tips on how you can avoid being disciplined.

The Practice Act for Massage Therapists Requires Disclosure of Prior Disciplinary History.

If you did not disclose your prior disciplinary history (prior criminal conviction, prior discipline on a professional license) on your application, this may subject you to an administrative complaint by the Florida Department of Health and the Board of Massage Therapy.

Not disclosing disciplinary history information is a violation of Section 480.046(1)(p), Florida Statutes, and Section 480.041(6), Florida statutes. It is imperative that you answer the history questions on your application truthfully. Answering the questions truthfully will help speed up your application.

Licensed Massage Establishment.

In Florida, the practice of massage therapy is governed by Florida Statutes. The Department of Health is the umbrella agency that is charged with enforcing the laws and rules and is over the Board of Massage Therapy.

It is a felony offense to practice, attempt to practice, or offer to practice a regulated healthcare profession, including massage therapy, without possessing a valid license. Reflexology is included under massage therapy and requires a license in Florida.

Working at a massage parlor that isn’t duly licensed is a violation of Section 480.043(1), Florida Statutes, which states: “No massage establishment shall be allowed to operate without a license granted by the department in accordance with the rules adopted by the board.”

Before working for a massage establishment or opening up your own massage parlor, it is imperative that you have the proper documentation to show that you are a duly licensed massage establishment as required by Section 480.043, Florida Statutes. If you do not have the proper documents, the ramifications can be severe. This can lead to complaints being filed against you and the establishment which may lead to arrest by law enforcement, a Uniform Unlicensed Activity Citation (fine), or the subject will be issued a Cease and Desist letter.

Education Discrepancies.

Prior to attending a massage school, make sure it is a Board-approved massage school. One of the ways to do this is to request information about the accreditation of the school from the school staff or its designated accrediting agency. Alternatively, you may go to the Florida Massage Therapy website and search for a list of Florida approved Massage Schools.

The Board of Massage Therapy has a Massage School Approval Requirements Checklist and Information on their website that you can use as guide to help you decide if the school is following the guidelines set forth by the Board of Massage Therapy. In addition, the Board of Massage Therapy has a closed program list showing you which schools are closed and no longer operating. Furthermore, they also have a list of approved schools. Of course with each of these options, it is always best practice to contact the board of massage therapy to inquire about a school that you may be interested in attending.

Sexual Misconduct and Sexual Activity.

Sexual misconduct and sexual activity has been a hot topic for the board for several years. Engaging in sexual misconduct with a client or patient is a violation of Section 480.0485, Florida Statutes.

It is important that you do not exceed the boundaries of the massage that you are performing. Follow the generally accepted treatment of massage therapy patients. Do not accept offers from anyone, and don’t offer extra services to anyone that is not a part of the listed services offered by the massage establishment. Exceeding the scope of the massage will not only lead to disciplinary action by the board of massage therapy, but it may lead to a criminal record.

Displaying Licensure.

Failure to conspicuously display establishment license and massage therapist license may lead to disciplinary action. It is extremely important that upon opening your own massage parlor that you place all of your licenses in a place where it can be seen.

Procedures for Reporting Human Trafficking.

Not having procedures in place for reporting suspected human trafficking may lead to disciplinary action. Pursuant to Section 480.043(13), Florida Statutes, massage establishments must implement a procedure for reporting suspected human trafficking to the National Human Trafficking Hotline or to a local law enforcement agency. A sign detailing this reporting procedure must be posted in a conspicuous place in the establishment that is accessible to employees.

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

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health investigations and other types of investigations of health professionals and providers. The Health Law Firm routinely represents massage therapists, dentists, nurses, physicians, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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

About the Author: Castillana F. Duvernay, J.D. is a new lawyer 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, 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.

Sources:

“Closed School List.” https://floridasmassagetherapy.gov/forms/mt-closed-schools-11-14.pdf

“Florida Approved Massage Schools List.” https://floridasmassagetherapy.gov/forms/massage-list-school.pdf

Florida Board of Massage Therapy. “Are massage establishments required to have procedures for reporting human trafficking?” https://floridasmassagetherapy.gov/help-center/are-massage-establishments-required-to-have-procedures-for-reporting-human-trafficking/

Florida Board of Massage Therapy. “Education and Training Programs.” https://floridasmassagetherapy.gov/education-and-training-programs/

Florida Board of Massage Therapy. “Unlicensed Activity (ULA).” https://floridasmassagetherapy.gov/latest-news/unlicensed-activity-ula/

 

“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 © 2024. The Health Law Firm. All rights reserved. No part of this work may be published in any form in any medium without the written permission of the copyright owner. The copyright owner asserts its right to be associated with the content of this work.

By |2024-01-02T16:08:36-05:00January 2, 2024|Categories: Massage Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Iowa Appellate Court Reverses $6 Million Nursing Home Negligence Decision Because of Hearsay Testimony

Author HeadshotBy George F. Indest III, J.D., M.P.A, LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm
On June 21, 2023, the Iowa Court of Appeals overturned the verdict in a nursing home negligence case that awarded $6 million in compensation and damages to the plaintiff. The case was reversed and remanded for a new trial because the trial court judge admitted inadmissible hearsay testimony into evidence. The testimony being appealed was that of staff members who claimed to have heard “reports” and “rumors” of alleged abuse by a nurse on staff toward not only the resident in question but other residents.
Hearsay in Iowa law is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Click here to read the Iowa Rules of Evidence concerning hearsay. This is the same definition used by the federal and most other courts.
Essentially, hearsay is when someone repeats something they heard from another person and presents it as if they know it to be true. Hearsay is often equated to rumor. Hearsay is not admissible due to the nature of speculation required in making such a statement, the fact that such statements are inherently unreliable and that the actual witness is not in court to answer questions about it. Thus there is no way for a party or the judge to test the credibility of the actual witness or determine facts that may have influenced the observation and statement.
Hearsay is considered unreliable because the person who knows what happened (who saw what happened or heard what happened) is not to be questioned about it. Therefore, there is no way to know what really happened for sure.
Details of the Case. 
In this case, the estate of the former nursing home resident, who succumbed to her injuries after a fall in the nursing home, claimed adult abuse and that negligence caused a wrongful death. In its defense, the nursing home focused on the alleged abuse by a nurse on the staff. The statements that were challenged in the appeal included testimony made by six nursing home staff members that residents, other unnamed employees, and an Iowa Department of Inspections and Appeals surveyor told them that the nurse in question had been physically rough with and swore at residents.
The employees testifying did not actually witness any such incidents. They were only testifying about what someone else said (“hearsay”). 
The trial court admitted these statements, allegedly not for their truth, but in an attempt to show that abuse had been reported and there had not been any follow-up investigation. The appellate court stated that this was not a valid reason to admit inadmissible hearsay into evidence because the estate must prove that the conduct existed to prevent the jury from engaging in rampant speculation based on unreliable hearsay evidence.
People in today’s society, yes, even judges, often forget this basic principle of law. With all of the completely fabricated lies being put out as “news” on some news channels, Internet rumors running rampant, and politicians making egregiously false statements, it’s often hard to remember how to distinguish a fact from an unreliable rumor or hearsay.
This is one of the problems with hearsay. It is often just gossip and rumor, which change from person to person. Especially egregious conduct, criminal activity, and salacious acts become increasingly exaggerated with each retelling. The founding fathers in English and American law realized the inherently unreliable nature of such “evidence.”
Under the hearsay rule, the Court of Appeals agreed with the nursing home that the statements being challenged were inadmissible hearsay evidence that influenced the jury’s verdict. Due to this, the court reversed the verdict and remanded the case for a new trial. To read the court’s opinion in full, click here.
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents health professionals and health facilities in civil and administrative litigation. We also represent physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, board hearings, 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.  We represent medical students, interns, resident physicians, and fellows in disputes with their graduate medical education (GME) programs.  We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters, and other disputes with their employers.  We often act as the physician’s personal counsel in medical malpractice litigation.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Source: 
About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. 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.
Attorney Positions with The Health Law Firm. The Health Law Firm always seeks 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.
Copyright © 2023 The Health Law Firm. All rights reserved.
By |2023-07-31T11:41:19-04:00August 28, 2023|Categories: Massage Law Blog|0 Comments

Harvard Med School Morgue Manager Allegedly Sold Body Parts, Class Action Alleges

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

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

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

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

The Class Action Lawsuit.

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

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

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

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

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

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

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

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

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

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

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

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

Sources:

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

Levenson, Michael. “Harvard Medical School Morgue Manager Sold Body Parts, U.S. Says.” The New York Times. (June 14, 2023). Web.

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

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

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.

 

Medications and Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests (Part 1 of a Blog Series)

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

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

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

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

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

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

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

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

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

Prescription Medications Documented as Mimicking Amphetamines.

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

 

Other Discussions in Future Blogs.

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

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

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

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

References:

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

 

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

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

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.
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Court Allows New York Doctor To Subpoena Yelp for User Information in Defamation Suit

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

On October 7, 2021, the United States District Court for the Southern District of New York ruled that Yelp is subject to a subpoena to reveal the names of anonymous users who left negative reviews for a doctor and his medical practice. The federal court judge found that the statements in the reviews made on Yelp contained factual claims that the doctor did have a legal right to contest in court. This is a factor that is usually missing in such cases. Accordingly, a motion for expedited discovery filed by the plaintiff physician was granted by the federal judge.

A Litigious History of Lawsuits.

The embattled physician has reportedly filed other lawsuits against reviewers for defamation. The doctor himself says he’s won or reached settlements with three of the negative reviewers, forcing them to take down their “false” reviews and paying an undisclosed amount of money.

Most recently, the physician filed suit in November 2020 against nine anonymous Yelp account-holders. According to the complaint, from November 2019 to August 2020, the users posted several reviews that contained statements that harmed his practice by making untrue and libelous comments.

In the present case we are discussing filed against the Yelp reviewer, the judge found that statements such as the physician “diluted” injectables and deceived patients about pricing to be factual statements. (The physician is apparently one who performs cosmetic procedures on patients like using botox and fillers.) Therefore, if they were false statements, as the physician alleged, this establishes a prima facie claim for defamation that courts have the authority to hear. According to the court’s order: “Because Plaintiff has alleged a prima facie case . . . and they cannot identify John Doe[s] without a court-ordered subpoena, the Court agrees that there is good cause to allow for early discovery.”  Click here to view the court’s opinion on our website.

I see this as a positive occurrence. Too often reviewers on Yelp, Google, Glass Door, and other such websites post egregious comments amounting to character assassination and libel, because they believe they can remain anonymous. And the owners of the websites fight tooth and toenail to avoid any liability and to avoid any co-operation when justice is sought by those harmed by their actions. We have had a number of cases we have handled where a “reviewer” uses a phony name and creates a phony user account just for the purpose of making a libelous, damaging review. Then, if caught, they just create a new phony account and re-post the same thing again. If the major carriers and websites like Yelp, Google, Bing, AOL, and Glass Door, want to remain free of liability, then they should co-operate when a person has to hire a lawyer and pursue legal action in order to obtain justice.

Is This Abusing the Legal System in An Effort to Stifle Free Speech?

Yelp reportedly warns users of the physician’s previous attempts to sue over negative reviews in a “Consumer Alert” pop-up notice on the doctor’s review page. Additionally, it reminds users, “reviewers who share their experiences have a First Amendment right to express their opinions on Yelp.”

Unlike a newspaper or television outlet, Yelp, Google, Glass Door, and other Internet carriers and websites enjoy immunity from liability for what they allow to be posted because of a federal law that protects them. Why are they given such a big advantage over more traditional media outlets? Why should they be?

In a separate lawsuit, a judge denied the effort by the same doctor to reveal the anonymous reviewer who wrote: “Cheap product and he’s absolutely not experienced nor does he care!!!!!” Yelp argued that the review is not defamatory as there is no statement of fact that can be proven true or false. The court agreed and found that the review used a “loose, figurative tone,” suggesting that the author expressed opinions rather than facts based on a negative experience.

Therefore, according to the court, the plaintiff was not able to make “a sufficient showing of prima facie defamation.” Click here to read the judge’s order in full in that case.

I disagree with the court’s ruling, however. Whether or not the physician has any experience is certainly a fact. It can easily be proven or disproven. It seems that if a doctor hung up a sign that said “Absolutely no Experience,” this would be perceived by most reasonable people to be a negative thing. I doubt that many people would be attracted to that doctor or his practice.

Key Takeaway From the Case.

The key takeaway from this case is that contrary to what Yelp’s pop-up notice implies, Yelp’s users have “implicitly agreed” to the release of their personal data if ordered by a court.

To learn more about fighting negative reviews on websites like Yelp as a healthcare professional, 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. We represent facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians in investigations and at Board of Medicine and Board of Osteopathic Medicine hearings. We 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:

Capriel, Jonathan. “Doc Can Subpoena Yelp User Info In Botox Defamation Suit.” Law360. (October 7, 2021). Web.

Marza, Mike. “Manhattan doctor sues over Yelp reviews he says are false.” ABC 7NY. (November 19, 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 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

Humana Agrees To Pay $11.2 Million to End Nurses’ Overtime Suit

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

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

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

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

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

The Settlement.

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

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

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

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

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

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

Sources:

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

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

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

 

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law

 

 

From the archives: CMS Using Medicare Termination to Squash Doctors Involved in Overprescribing Opioids

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

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


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

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

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

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

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

In Truth, There May Be No Oversprescribing.

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

Consequences of a Medicare Privileges Termination.

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

Consequences include:

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

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

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

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

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

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

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

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

 

Act Fast; Don’t Delay!

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

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

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

Call now at (407) 331-6620 or Toll-Free (888) 331-6620 or visit our website www.TheHealthLawFirm.com.

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

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