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

 

 

CMS Using Medicare Termination to Squash Doctors Involved in Overprescribing Opioids

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.

KeyWords: Healthcare fraud representation, healthcare fraud defense lawyer, Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims, representation for overbilling Medicare, medical overbilling, allegations of overbilling Medicaid, FCA defense lawyer, representation for overprescribing

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Copyright © 2022 The Health Law Firm. All rights reserved.

Texas Hospital’s Vaccination Mandate For COVID-19 Upheld by Federal Court

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

As some states lift COVID-19 restrictions, the business community is still grappling with the dynamic between the COVID-19 vaccine and workplace operations. To address this, some U.S. employers have elected to adopt mandatory vaccination policies. These policies, in essence, require that, subject to a few exceptions, all employees must receive the COVID-19 vaccine as a condition of continued employment.

Not surprisingly, we see various legal challenges to mandatory COVID-19 vaccination policies across the country. On June 12, 2021, a federal court in Texas became the first to rule on the permissibility of such policies enforced by private employers. In a landmark ruling, the court stated that mandatory workplace vaccination policies are lawful under Texas and federal law and may be enforced as a condition of continued employment.


The Court’s Ruling on Mandatory Vaccination Policies.

The lawsuit, Bridges v. Houston Methodist Hospital, was initially filed on behalf of 117 employees after their employer, Houston Methodist Hospital, instituted a policy requiring employees to receive a COVID-19 vaccine as a condition of continued employment. Employees who were not vaccinated by the deadline were to be placed on a two-week unpaid suspension to allow them to comply with the policy. Under the policy, those who ultimately did not comply would be terminated.

In the law suit challenging the employer’s policy, the Plaintiffs asserted: (1) the employees whose employment was terminated as a result of this policy were wrongfully terminated in violation of Texas law, and (2) the vaccine mandate violated public policy of the state of Texas.

Texas Wrongful Termination Claim.

Under Texas law, the court found that firing an employee who is unwilling to comply with an employer’s mandatory COVID-19 vaccine policy does not constitute wrongful termination. Texas law only protects employees who are fired for refusing to commit an illegal act at the request of their employer. The court reasoned that receiving the vaccine is not an illegal act given the U.S. Supreme Court’s rulings upholding involuntary quarantines and mandatory vaccines.

Violation of Public Policy.

The court dismissed the plaintiffs’ public policy arguments because, according to the court, Texas law does not recognize a public policy exception to the at-will employment doctrine. Additionally, the court noted that a mandatory vaccine requirement is consistent with public policy. The Supreme Court has previously held that state-imposed quarantine and vaccination requirements do not violate due process of law.

The court held that the plaintiffs were not being coerced to get the vaccine but were being given a basic choice by its employer: get the vaccine so the hospital could safely continue its business of saving lives or seek employment elsewhere.

Lastly, the court also cited recent Equal Employment Opportunity Commission (EEOC) guidance in its decision. The guidance states that employers can require employees to be vaccinated, subject to the obligation to provide reasonable accommodations to employees with legitimate medical or religious reasons for not being vaccinated. Click here to view.

To view the court’s order in full, click here.

Important Takeaway From This Court Decision.

While there are sure to be future legal challenges to mandatory workplace vaccination policies, this decision provides strong support for their use and permissibility. However, even with this ruling, employers with policies need to be mindful of their obligations and potentially provide reasonable accommodations to employees with disabilities or sincerely held religious beliefs that prevent them from receiving the COVID-19 vaccine. Of course, we will see numerous legal challenges of all kinds to these decisions.

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

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations. We do NOT represent plaintiffs in COVID-19 injury suits, however.

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:

Downie, Alex. “Federal Court Upholds Employer’s COVID-19 Vaccine Mandate.” The National Law Review. (June 15, 2021). Web.

Brown, Amanda, Goldstein, Mark. “In first-of-its-kind decision, federal court rules that mandatory workplace COVID-19 vaccine policies are lawful.” Employment Law Watch. (June 16, 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 Avenue, Suite 1000, Altamonte Springs, Florida 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 Firm. All rights reserved.

 

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.

 

 

 

Law Aimed at Healthcare Professional Background Screening Passed in Florida

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

For several years, many healthcare professionals have been required to pass a Level II background check in order to work in most Florida healthcare facilities licensed by the Agency for Health Care Administration (AHCA). Many healthcare professionals are also required to pass a Level II background check in order to be licensed by the Florida Department of Health (DOH). In March 2020, the Florida Legislature passed House Bill 713, which will add the offenses of battery on a vulnerable adult and battery on a patient or resident of certain healthcare facilities (primarily nursing facilities) as a disqualifying offense. The law took effect on July 1, 2020. Previously, only felony battery and battery on a minor were disqualifying offenses for purposes of the Level II background screening.

More Details on the New Legislation.

A health professional who previously passed the Level II background check may nevertheless be deemed “not eligible” for employment in a licensed health facility on the next Level II background check. This would occur if the practitioner has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to battery of a vulnerable adult, or battery on a patient or resident of a healthcare facility. (This is the wording of the statute, not mine.)

A practitioner who is determined to be “not eligible” on a Level II background check due to a disqualifying offense must apply for an exemption from that disqualifying offense, in order to be permitted to work. The practitioner seeking an exemption has the burden of proving that the exemption should be granted. The provider must prove this with clear and convincing evidence, a standard that is higher and stricter than that in a civil trial.

Any health professional seeking an exemption from a disqualifying offense should seek the assistance of an experienced health law attorney familiar with the application process, and the types of evidence that can prove that the health professional should be granted an exemption.

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

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

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

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

How Medical Information Bureau (MIB) Reports Affect Your Insurance Rates

Attorney Amanda ForbesBy Amanda I. Forbes, J.D.

When you apply for insurance, an insurance company will look at various factors regarding your history to determine how much your insurance policy will cost. Most insurers obtain a report from the Medical Information Bureau (“MIB”) and use this in determining the risk you pose and, hence, your policy premium.

The MIB checks past records to identify any errors, misrepresentations, or omissions made on an insurance application. An MIB report is similar to a credit report except it is specifically tailored for the insurance process. Click here to learn more.

What Does the MIB do?

Since 1902, the MIB has worked as a not-for-profit organization in the United States and Canada. Its members (e.g., life insurance companies, health insurance companies, disability insurers, etc.) use the MIB to help them determine a person’s “risk and eligibility during the underwriting of life, health, disability income, critical illness, and long-term care insurance policies.” Learn more about the organization here.

Insurance applications, whether for health, life, disability, critical illness, or long-term care, will almost always have several health questions that help the insurance company determine an appropriate risk classification for that individual. The higher the risk, the higher the premium, usually. Traditionally, some applicants in very high-risk categories (transplant patients, those with serious long-term chronic medical conditions) or in high-risk professions (e.g., parachuting instructors, trapeze artists, explosives experts) may not be able to obtain insurance at all.

Sometimes an applicant for an insurance policy may try to obtain lower premiums by knowingly omitting key information on their applications. Because of this, insurance companies started to rely on MIB reports to identify and prevent insurance fraud. The MIB provides information that can be used to identify false or incomplete applications.

It is estimated that the MIB saves its member companies over $1 billion annually (Note: I think this estimate probably comes from the MIB). It can do this because the information it provides to its members allows them to evaluate and assess risk more accurately. MIB’s members share information with MIB in a coded format to protect individuals’ privacy.

MIB Pre-Notices.

When a member company wants to search MIB’s database or report information to the MIB, it must first give the individual MIB a “pre-notice.” However, this is often buried in the fine print of the insurance application. The MIB “pre-notice” advises the individual that a report of their medical condition may be provided to MIB.

When the individual later applies for insurance with a different company that is a member of MIB, then MIB may provide that company with an MIB report.

After the individual receives MIB “pre-notice,” they are requested to sign an authorization. The authorization advises the individual that MIB is an information source, as well as others that may have records about the individual (e.g., primary care physician). The signed authorization permits the member company to receive and share information with MIB. Learn more about MIB “pre-notice” here.

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

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

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

About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

“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.

 

Impaired Practitioner Programs: What Happens if You’ve Been Accused?

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

In an industry that revolves around helping others, physicians and other health professionals sometimes find that they are the ones being pushed toward a treatment program. Long hours, heavy workloads, and stress among health care professionals can sometimes lead to unsafe, unprofessional behavior and impairment allegations.

We routinely work with physicians, nurses, and other health professionals who are accused by employers, hospitals, competitors, or terminated employees of impairment due to drug or alcohol abuse, or mental impairment, of being a “disruptive physician” or of sexual boundary issues. However, not all physicians and health professionals who are referred to a health program are in actual need of rehabilitation services.

What is the Impaired Practitioners Program?

The Florida Department of Health’s (DOH) Impaired Practitioners Program (IPN), Section 456.067, Florida Statutes, is administered by the Intervention Project for Nurses or “IPN” (for nurses and nurse practitioners) and by the Professionals Resource Network or “PRN” (for physicians, dentists, pharmacists, and all other health professionals). IPN is responsible for all nurses and works with and through the Florida Board of Nursing. PRN works with and through the Florida Board of Medicine, Board of Dentistry, Board of Pharmacy, and other Department of Health Professional Boards.

You Are Instructed to Report Yourself to IPN or PRN; What Now?

These types of allegations discussed above made against a physician, nurse, or other health professional are extremely serious because they are usually treated by the DOH as “Priority 1” or “Fast Track” offenses. This means that the charges against the individual will usually be automatically considered for an Emergency Suspension Order (ESO) issued by the Florida Surgeon General at the request of the Department of Health. Unless a qualified, experienced health care attorney is able to immediately produce reliable documentation and evidence showing the health professional is not impaired, the Surgeon General will usually issue an ESO. Click here to read one of my prior blogs to learn more.

Even in cases where the individual may actually have committed an offense, there are a number of administrative and procedural measures that may be used to avoid a suspended license. For the innocent health professional, an experienced attorney familiar with such matters may be able to obtain additional drug testing, polygraph (lie detector) testing, medical examinations, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which may help to show innocence and lack of impairment.

Call an Attorney Immediately, at the Beginning, and Prior to Making Any Decisions or Calls!

If you are accused of wrongdoing, especially accusations involving drug or alcohol abuse or impairment, even if you are threatened with being reported to the DOH or your professional board, then it may be much better to defend yourself and fight such charges instead of trying to “take the easy way out.” This is especially true if you are being falsely accused. There are many problems that you can avoid by having good legal advice before you make a stupid mistake. We are often consulted and retained by clients when, after they have made the mistake of talking to the wrong people about the wrong things, they are in a situation they could have avoided.

Our firm has extensive experience in representing physicians and other professionals accused of drug abuse, alcohol impairment, mental impairment, and sexual boundary issue, as well as in dealing with the IPN and the PRN, their advantages and disadvantages, their contracts, their policies, and procedures, and their requirements.

The bottom line is: if you are accused of drug impairment, alcohol impairment, drug diversion, sexual boundary issues, sexual misconduct, or of being mentally or physically impaired, immediately contact an attorney experienced with IPN and PRN and with the Board of Medicine, Board of Nursing, Board of Dentistry, Board of Pharmacy, and other professional boards. Don’t risk losing your livelihood by just taking the apparently easy way out without checking into it. There may be other options available for you, especially if you are innocent and not impaired.

To read one of my prior blogs about the recent changes to Florida’s Impaired Practitioners Program, click here.

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

Sources:

Masterson, Les. “Physician wellness, quality of care go hand-in-hand, analysis finds.” Healthworks Collective. (September 10, 2018). Web.

Maria Panagioti, Keith Geraghty, Judith Johnson. “Association Between Physician Burnout and Patient Safety, Professionalism, and Patient Satisfaction.” Journal of American Medical Association (JAMA). (September 4, 2018). Web.

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

Are You Applying for a Massage Therapist or Health Professional License? Follow Our Tips

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

The process of obtaining a massage therapist or health professional license can be challenging and time-consuming. When seeking initial licensure or applying for a license in another state, you should be aware of delays in the application process due to the investigation of credentials and past practice, as well as the need to comply with licensing standards.

Here is a List of Examples That Would Delay Your Massage Therapy License Application:

• Disciplinary or academic actions during postgraduate training (probation, suspension, remediation)
• Action by another state’s regulatory or licensing board
• Action by a different professional licensing board
• Misdemeanor or felony convictions
• Results of the criminal background check (remember, it shows arrests, not necessarily the results of the arrests)
• Civil judgments/malpractice
• Medical, physical, mental, or chemical dependence impairment/condition within the last five years
• Adverse action against your clinical privileges by a hospital, ambulatory surgical center, skilled nursing facility, or other health facility or professional organization.
• Adverse action (e.g., termination for cause) by a former employer
• Action by a specialty board
• Lack of recent active practice
• Action by DEA against your DEA registration number
• Disciplinary action (especially court-martial) by the military
• Applications that require a petition of waiver or variance for a job

Not being 100% truthful about your history and education is the number one reason for denial of an application for a license! Don’t try to hide potentially derogatory information from a state licensing board, if it is required by the question or the instructions that further elaborate on the question. It is much better to come forward with the information and be upfront.

This being said, you do not want to volunteer adverse information that a question does not ask. For example, if a question asks about felony convictions, DO NOT disclose misdemeanor convictions or traffic ticket convictions. If a question asks about convictions, DO NOT disclose arrests for which you were acquitted or were dismissed. If a question asks about medical malpractice lawsuits, DO NOT disclose civil lawsuits that were not related to malpractice.


Ways to Speed up the License Application Process.

There are ways to ease the process of applying for a massage therapist license and get your application processed quicker. Before submitting your application, contact the licensing board and request a copy of its current licensing requirements and the average time it takes to process applications.


Here are some tips to help ease the process of applying for massage therapist or medical licensure:

1.     Submit follow-up documents in a timely manner online or mail them to the correct address (as required). If you cannot obtain requested follow-up documentation, provide a separate, detailed explanation (preferably in the form of an affidavit), of why you cannot do so.

2.     Keep in mind that any fees you pay have to be processed by the Department vendor. This may take a few days.

3.     Identify any variation of names and nicknames.

4.     Once you start the process, submit the application within 30 days so that your supplemental documents, including transcripts, will have an application file in which to be filed.

5.     Have the correct address on the application for training programs you have attended and the health facilities at which you have worked.

6.     Send in necessary back-up documents in a timely manner.

7.     Follow up with sources that are sending the Board of Massage Therapy your documents.

8.     Watch for letters or e-mail from your reviewer. This is how you will be instructed on what additional documents or information may be needed for your application to be complete.

9.     If asked for follow-up information from the Board, please read the request carefully to identify exactly what is needed to make your application complete.

10.     Answer questions honestly and provide an explanation where appropriate. But do not provide information that is not being requested.

Massage therapists and other medical professionals seeking a license should expect at least a 60-day period from the time they initially submit a completed application and the actual date licensure is granted.

For more information and ways that The Health Law Firm can help in licensure matters, visit our Video Q&A section or visit our website’s Areas of Practice page.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

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

The Health Law Firm routinely represents 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.

Sources:

“Obtaining a Medical License.” American Medical Association (AMA). Web.

Florida Board of Massage Therapy, “Licensing FAQs,” http://flboardofmassagetherapy.gov/licensure-faqs/

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.

Healthcare Providers, You Might Need A Home Medical Equipment Provider License, If . . .

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

Physicians frequently utilize electrostimulation or transcutaneous electrical nerve stimulation (TENS) units, and other medical equipment in the course of their practice. Most often the physician or the practice bills the patient or the patient’s insurance for the medical equipment. Unfortunately, some physicians do not know that a special Home Medical Equipment Provider (HMEP) license may be required in Florida in order to legally bill patients for TENS units, and other durable medical equipment that the physicians provide to their own patients. Violating the laws that require a license can place the physician and the practice in some serious legal trouble.

Requirements for Physicians.

Under Florida law, a special Home Medical Equipment Provider (HMEP) license is required before a physician may provide and bill a patient or the patient’s insurance company for TENS units and most other durable medical equipment. Physicians who provide and bill for medical equipment and supplies without the required license may be charged with a second-degree misdemeanor. The same physicians may also be subjected to an administrative fine of $5,000 for each violation. Additionally, insurance companies routinely refused to pay for TENS units and other durable medical equipment that physicians have provided to their own patients because the physician has not obtained a Home Medical Equipment Provider license.

New Legislation.

The Florida Legislature recently passed an amendment to the Home Medical Equipment Provider license requirement that would allow allopathic, osteopathic, and chiropractic physicians to sell or rent electrostimulation medical equipment and supplies to their patients in the course of their practice without first obtaining the Home Medical Equipment Provider license. However, the amendment does not change the license requirements for other durable medical equipment that physicians sell or rent to their own patients in the course of their practices. The amendment became effective on July 1, 2020.

Any Florida physician providing TENS units or other durable medical equipment to their own patients and billing the patients or the patient’s insurer for those services should consult with an experienced health law attorney to ensure the services are provided legally.

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

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

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

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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