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Supreme Court Rules FCA Case Liability Requires Defendants’ Subjective Belief

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

On June 1, 2023, the Supreme Court handed down an opinion on the knowledge standard required in False Claims Act (FCA) cases in a precedential decision that leaves the whistleblower plaintiffs bar reeling. In a unanimous ruling, the high court said liability of defendants in FCA cases would be based on their own belief in the falsity of their claims, rather than an “objectively reasonable” interpretation of the law or regulation. This appears to set the age-old maxim of “ignorance of the law is no excuse” on its head. Now, apparently, a defendant can argue that he, she or it was ignorant of the law and win.

The case before the Supreme Court was consolidated from two lower court decisions in the cases United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway.

When Subjective Belief is Relevant in FCA Cases.

In the cases which the Supreme Court decided, the whistleblowers accused SuperValu and Safeway of violating the FCA by overcharging Medicare, Medicaid, and the Federal Employee Health Benefits Program for prescription drugs.

According to the rules of these programs, pharmacies cannot charge the government more than the “usual and customary” price for a drug, which is the cash price charged to the general public. The plaintiffs claimed that the pharmacies overbilled the government when they started offering discounted prices to consumers under a price-match program to compete with other pharmacies. They also offered a membership discount program but did not adjust their “usual and customary” prices, continuing to charge the government more than they should have.

The Lower Court’s Ruling.

The Seventh Circuit Court of Appeals ruled in April 2022, that the pharmacies had submitted false claims by not reporting their discounted prices, which were the “usual and customary” prices. The appeals court also stated that the retailers had made reasonable interpretations of ambiguous laws without being warned against it by authoritative guidance. The circuit court referred to the Safeco standard from the Supreme Court’s 2007 Safeco Insurance Co. of America v. Burr case in its decision.

Click here to learn more about the Seventh Circuit Court of Appeal’s ruling.

The Supreme Court’s Ruling.

The Seventh Circuit’s perspective was rejected by the Supreme Court, which instead focused on the defendant’s intentions when submitting false claims. Justice Clarence Thomas, writing for a unanimous court stated, “What matters for an FCA case is whether the defendant knew the claim was false. Thus, if [the defendants] correctly interpreted the relevant phrase and believed their claims were false, they could have known their claims were false.” Read the opinion in full here.

Under this rationale, a defendant could successfully make the argument, “I didn’t know the claim was false and I never bothered to do anything to make sure of that fact.” Even objectively unreasonable claims, such as charging a million dollars for a drug which only cost one dollar, could be successfully defended.

Contact Health Law Attorneys Experienced in Handling Health Care Fraud Investigations and other Legal Proceedings.

The Health Law Firm represents healthcare providers in Medicare and Medicaid audits, and in RAC audits throughout Florida and across the U.S. We also represent health providers in civil and administrative litigation by government agencies and insurance companies attempting to recoup claims that have been paid.

The Health Law Firm’s attorneys routinely represent physicians, dentists, pharmacists, psychotherapists, medical groups, clinics, pharmacies, assisted living facilities (ALFs), home health agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

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

Sources:

Elberg, Jacob. “Supreme Court maintains focus on defendant’s subjective beliefs in False Claims Act cases.” SCOTUS Blog. (June 1, 2023). Web.

Wilson, Daniel. “Justices Say FCA Liability Hinges On Defendants’ Beliefs.” Law360. (June 1, 2023). Web.

Gaivin, Kathleen. “False Claims Act ruling by High Court a ‘clear win’ for government, expert says.” McKnights Senior Living. (June 2, 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 Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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: PAlexander@TheHealthLawFirm.com 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.

Florida Attorney Says AHCA Must Put Medicaid Final Orders Online

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

Florida’s Agency for Health Care Administration (AHCA) has come under fire for failing to make Medicaid final orders accessible to the public. On April 11, 2023, an attorney asked a Florida appeals court to revive her suit against AHCA, trying to force AHCA into compliance with state public records laws.

Attorney Nancy Wright says the AHCA orders fall under a state law that requires all proceedings determined by a state agency to be placed into a centralized electronic database accessible to the public. This would allow citizens and healthcare providers more accessible access to those decisions and transparency when understanding Medicaid policies and decisions made by AHCA.

Access to Medicaid Final Orders.

The plaintiff’s attorney argued before a three-judge panel of the court of appeal that she should not be required to pay hundreds of dollars to gain access to Medicaid final orders to prepare for clients’ Medicaid hearings when the law requires the agency to publish these. The attorney further argued that this fee was an unfair and unjustified barrier to justice. She should be given free access to these orders to provide her clients the best possible representation.

More Details of the Case.

The Florida Health Justice Project and the National Health Law Program filed the lawsuit against AHCA on behalf of Wright in December 2020 in the First District Court of Appeal of Florida.
“[Medicaid law’s] notorious complexity and rapid regulatory changes put even lawyers on edge,” she said in a statement when she filed her suit. “AHCA’s unwillingness to make their [sic] final orders accessible means that I cannot fully advise my clients on how and why decisions on services are being made. This lack of transparency makes a complicated system almost impossible to navigate for the many unrepresented enrollees.”

View the press release from The Florida Health Justice Project.

However, the trial court sided with AHCA and granted summary judgment to the agency.

The Appeal.

The Elder Law Section of the Florida Bar expressed their support for Wright and submitted an amicus brief on appeal. They highlighted that the Florida Department of Children and Families regulates Medicaid eligibility proceedings with the same law that provides authority to AHCA. Furthermore, the Department publishes its final orders in an electronic database, making them readily available to the public.

However, accessing these same orders on Medicaid coverage requires a public records request which can be costly and time-consuming. In its brief, the Elder Law Section argued that this disparity is unfair as it burdens those attempting to access said records. The brief further suggested that upholding the trial court’s summary judgment would only perpetuate this inequality of access to public records.

To learn more, read the complaint in full here.

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

Physicians, therapists, counselors, and other health professionals who accept Medicaid are routinely audited by the Medicaid Program to detect overpayments or fraudulent claims. Medicaid fraud is a severe crime and is vigorously investigated by the state Medicaid Fraud Control Unit (MFCU), the Agency for Healthcare Administration (AHCA), Program Integrity Contractors (PICs), the FBI, and the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Other state and federal agencies may also participate, including the U.S. Postal Service (USPS) and other law enforcement agencies. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, mental health counselors, therapists, home healthcare agencies, nursing homes, group homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (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 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.

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: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

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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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The Health Law Firm2023-05-06T20:00:17-04:00May 8th, 2023|Categories: Mental Health Law Blog|1 Comment

Humana Agrees To Pay $11.2 Million Settlement 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.

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

Court Rules New York Doctor Can Subpoena Yelp for User Info 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 Firm2023-02-17T19:00:00-05:00February 19th, 2023|Categories: Mental Health Law Blog|Tags: business litigation lawyer, complex health care litigation attorney, health care professionals legal representation, health law defense attorney, healthcare litigation defense attorney, legal counsel for health care professionals, legal representation for clients involved in the health care industry, legal representation for defamation lawsuit against a healthcare professional, legal representation for defamatory statements against health care professionals, legal representation for physicians, physician lawyer, Representation of healthcare professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews|0 Comments

Manager of Dental Office Sentenced to One Year Prison Term for Defrauding Medicaid Out of More Than $813,000

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

On October 1, 2021, a former dental office manager was sentenced to 12 months in prison for her role in a Medicaid fraud scheme. Mahsa Azimirad, was the office manager for Universal Smiles, a D.C.-based dental practice, according to the U.S. Attorney’s Office for Washington, D.C.

She was indicted in January 2019, along with the dentist who ran the practice. The dentist pleaded guilty in May 2021 in the U.S. District Court for the District of Columbia and reportedly admitted that she received over $813,000 through false billings.

The Fraudulent Billing Scheme.

Both the office manager and the dentist were alleged to have participated in a scheme to defraud the D.C. Medicaid Program through their operation of the dental practice. The dentist was a Medicaid provider. As part of the scheme, it is alleged that both of them proceeded to bill Medicaid for thousands of provisional crowns, a significant number of which were allegedly not actually provided to the patients. From August 2012 through February 2014, D.C. Medicaid reportedly paid Universal Smiles approximately $5.4 million in Medicaid reimbursement. Of that amount, it is alleged that the office manager received approximately $813,184.

As part of the sentence, she has been ordered to pay back the full amount she received and will be on three years of supervised release following the completion of her prison term.

Click here to read the press release by the Department of Justice (DOJ) and learn more.

To read about a similar case that also deals with a healthcare professional, click here to read my prior blog.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits and Investigations of Dentists and Healthcare Professionals.

The attorneys of The Health Law Firm provide legal representation to dentists, dental hygienists, physicians, medical groups, nurses, nurse practitioners, CRNAs, physical therapists, behavior analysts, pharmacists, psychologists, mental health counselors, health care facilities, and other health providers in Medicaid and Medicare investigations, audits, fraud charges, and recovery actions.

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:

Martin, Colleen. “Rockville Woman Defrauded Medicaid At Dental Office: US Attorney.” Patch. (October 4, 2021). Web.

Bethesda Beat Staff Reporter. “Rockville woman to serve prison term over D.C. Medicaid fraud.” Bethesda Magazine. (October 4, 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 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.

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Florida Telehealth Laws for Mental Health Counselors, Social Workers and Marriage and Family Therapists

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

The Florida Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling has published the following guidance regarding the provision of telehealth services.

As of October 11, 2021, it is still effective and is provided verbatim as follows:
(See more at: https://floridasmentalhealthprofessions.gov/latest-news/telehealth/)

During the 2019 legislative session, Florida passed section 456.47 Florida Statutes, which establishes standards of practice for telehealth services, including patient evaluations, and record-keeping. The law also authorizes out-of-state health care practitioners to perform telehealth services for patients in Florida. Signed by the Governor on June 25, 2019, this law became effective on July 1, 2019.

Out-of-State Health Care Practitioners.

Out-of-state health care practitioners must be registered with the Florida Department of Health to perform telehealth services for patients in Florida. The out-of-state telehealth provider registration is for health care practitioners licensed outside of Florida ONLY. Florida licensees can already provide telehealth services to patients in Florida that they can treat in person.

Pursuant to section 491.014(4)(d), Florida Statutes, you may practice under a limited basis without a license as specified below:

4) No person shall be required to be licensed, provisionally licensed, registered, or certified under this chapter who:

(d) Is not a resident of this state but offers services in this state, provided:

1. Such services are performed for no more than 15 days in any calendar year; and

2. Such nonresident is licensed or certified to practice the services provided by a state or territory of the United States or by a foreign country or province.

The Department has created a website that allows interested parties to review information about Florida telehealth, sign up for updates, and register to become an out-of-state telehealth provider. For more information, please visit www.flhealthsource.gov/telehealth. Information Regarding a Designated Registered Agent can be found here: https://floridasmentalhealthprofessions.gov/help-center/out-of-state-telehealth-provider-registration/.

For questions, contact the Telehealth Office at MQA.Telehealth@flhealth.gov.

Florida Practitioners.

If you would like to provide services to a client outside of the state of Florida, you must contact the board in the jurisdiction where the patient is located. Not all states permit telehealth service even under emergency circumstances.

Florida Registered Interns.

Pursuant to Rule 64B4-2.002, Florida Administrative Code, registered interns may provide face-to-face psychotherapy by electronic methods if the registered intern has a written telehealth protocol and safety plan in place with their current qualified supervisor which includes the provision that the qualified supervisor must be readily available during the electronic therapy session. Additionally, the registered intern and their qualified supervisor must have determined, through their professional judgment, that providing face-to-face psychotherapy by electronic methods is not detrimental to the patient, is necessary to protect the health, safety, or welfare of the patient, the registered intern, or both, and does not violate any existing statutes or regulations.

Qualified supervisors may utilize face-to-face electronic methods, including telephone only communication, to conduct all supervisory sessions for internship hours if the qualified supervisor determines, through their professional judgment, that such methods are not detrimental to the registered intern’s patients and are necessary to protect the health, safety, or welfare of the qualified supervisor, the registered intern, or both.

Any clinical hours obtained via face-to-face psychotherapy by electronic means shall be considered clinical hours for the purpose of meeting internship requirements.

For further information regarding the Florida telehealth guidelines, please click here.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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.

The Health Law Firm2023-01-04T19:00:33-05:00January 6th, 2023|Categories: Mental Health Law Blog|Tags: doctor attorney, Florida health law attorney, Florida telemedicine defense lawyer, health care compliance defense lawyer, health care defense attorney, health law defense attorney, Marriage & Family Therapy and Mental Health Counseling defense lawyer, Marriage & Family Therapy and Mental Health Counseling investigations, Marriage & Family Therapy and Mental Health Counseling representation, Marriage & Family Therapy and Mental Health Counseling Therapy complaints, medical board attorney, medical license defense counsel, medical licensure attorney, mental health counselor and social worker defense attorney, nurse attorney, professional licensure defense attorney, protecting your professional license, representation for applying for a medical license, representation for Board of Clinical Social Work, representation for telehealth investigations, representation for telemedicine investigations, representation of health care professionals, reviews of The Health Law Firm attorneys, telehealth provider investigation defense lawyer attorney, telemedicine representation, the health law firm, The Health Law Firm reviews|0 Comments

Mental Health Counselors & Social Workers: If You’re Applying for Your Professional License, Read This First!

By 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 mental health counselor or social worker 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.

Examples That Would Delay Your Mental Healthcare 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.

Tips to Speed up the License Application Process.

There are ways to ease the process of applying for a mental health counselor or social worker 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.

Tips to ease the process of applying for mental health counselor or social worker 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 Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling 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.

Mental health counselors, social workers, 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 mental health counselor, social worker, 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 mental health counselors, social workers, 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 Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling, “Licensing FAQs,” https://floridasmentalhealthprofessions.gov/licensing/

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.

Centene to Pay Washington State $19 Million to Resolve Medicaid Fraud Allegations

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

On August 24, 2022, managed healthcare company, Centene Corporation, agreed to pay $19 million to the State of Washington to settle fraud allegations. Centene owns and operates Sunshine State Health Plan, d/b/a Sunshine Health, in Florida. In addition, it has been reported that Centene/Sunshine Health reportedly has over $31 billion in contracts with the state of Florida alone. Click here to learn more.

The agreement with Washington State resolves allegations that it overcharged its Medicaid program for pharmacy benefit management services, Washington Attorney General Bob Ferguson announced in a press release.

Under the deal, in addition to the $19 million payment to Washington State, the federal government will receive $13.3 million related to the settlement, according to the Attorney General’s office. In addition, a whistleblower who sued the company on behalf of the state will also receive $1 million. It is the second-largest Medicaid fraud settlement in Washington’s history.

An Investigation and a Whistleblower.

According to the press release, the Washington AG’s office began investigating pharmacy benefit managers in 2019 after a whistleblower said the company failed to disclose actual pharmacy benefits and service costs. Furthermore, Centene allegedly failed to pass on discounts it received to the state Medicaid program, causing inflated fees, according to the release.

Washington sued Centene in July 2022, alleging the company and a subsidiary, Coordinated Care of Washington, violated the state’s Medicaid False Claims Act. Coordinated Care of Washington contracts with Washington’s Health Care Authority to manage its Medicaid program, Apple Health.

Shelling Out Big Bucks For Settlements.

Centene did not admit to any wrongdoing in this case, as is usual with settlement agreements. “This no-fault agreement reflects the significance we place on addressing their concerns and our ongoing commitment to making healthcare delivery local, simple and transparent,” Centene’s spokesperson said.

But, while denying any wrongdoing, it has settled claims over similar alleged conduct in ten other states for more than $260 million. Additionally, it said last year that it was still in negotiations with more states and had set aside $1.25 billion to settle such claims. Click here to learn more.

To view the settlement agreement in full, click here.

Similar Patterns of Misconduct?

We need to ask: “Is this the business model of Centene and its different owned subsidiary companies?” We note that on March 22, 2022, the Centers for Medicare and Medicaid Services (CMS) assessed civil monetary penalties (CMP) against Centene Corporation for similar alleged wrongful activities involving the states of California, South Carolina, Texas, Ohio, Michigan, and others. And in a letter dated March 11, 2022, the Florida Agency for Health Care Administration issued a $9.1 million fine over Centene/Sunshine Health’s improper failure to pay benefits to Florida’s neediest, sick children. We have not found any report that Centene challenged or appealed either government penalty.

When multiple billions of dollars in government contracts are handed out to one contractor, and it is the subject of so many allegedly wrongful acts, one must ask if it is just treating such penalties and fines as the routine costs of doing business. Considering that $9.1 million is less than three (3) hundredths of a percent (.0003) of its $31 billion in contracts with the state of Florida, this cost may not even be significant enough for it to post on its profit ad loss statements.

Contact Health Law Attorneys Experienced with Medicare and Medicaid Audits, Healthcare Audits, and Insurance Payment Disputes.

The attorneys of The Health Law Firm represent counselors, therapists, physicians, healthcare providers and healthcare facilities in defense of Medicare and Medicaid audits, audits by insurance companies and managed care, and demands for repayment of overpayments. They represent healthcare providers in audits, audit appeals and repayment disputes against Centene Corporation and Sunshine Sate Health Plan d/b/a Sunshine Health. They also represent healthcare providers in defense against allegations of false billing, overbilling, False Claims Act violations and civil monetary penalties (CMP).

Our attorneys represent physicians, mental health counselors, behavior therapists, professional counselors, occupational therapists, social workers, medical groups, home health agencies, pharmacies, pharmacists, home nursing care providers, and other healthcare providers and institutions.

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:

Redmond, Nell. “Centene to pay $33.3 million to settle Washington Medicaid fraud claims.” Reuters. (August 25, 2022). Web.

Elletson, Grace. “Centene Strikes $33M Deal To End Wash. Medicaid Fraud Suit.” Law360. (September 2, 2022). Web.

Health Law Weekly. “Centene Will Pay $19 Million to Resolve Medicaid Fraud Allegations.” AHLA. (September 2, 2022). Web.

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

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. 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: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

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Mental Health Counselors and Psychotherapists: Simple Rules for Keeping Your License and Avoiding Complaints

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

I represent many mental health counselors, social workers, psychologists, and professional counselors, defending them on complaints being investigated against their professional licenses. Many complaints and investigations arise because the therapist has strayed over the line and crossed the therapist-client boundary. In reviewing these cases, I have drawn up a list of a few simple “bright line” rules that can help save you many hours of stress and mental anguish as well as thousands of dollars in attorney’s fees and costs defending yourself

These “rules” may seem to be common sense, but there they are, anyway:

1. DO NOT ever meet the client at an outside social activity or attend a social event with the client. This includes “just dinner” or “just-drinks.”

2. DO NOT text the client. Texting is not secure and leads to casual and unprofessional thinking and conversation with the client. Many health care institutions prohibit their physicians and employees from texting with clients because of the HIPAA Security and Privacy Rules. You can use that as an excuse if you need one.

3. DO take a screenshot and print out the text when you violate the above rule. Place it in the client’s health record because you will probably be seeing it again, attached to a complaint.

4. DO send an e-mail or, better yet, a professional letter to the client, instead of texting the client. Print out a copy and place it in the client’s health record, because you will probably see it again.

5. DO NOT EVER make any suggestive or sexual remarks to the client in any communications, oral or written or text, or e-mail. In fact, DON’T even think about it. This includes off-color jokes and comments.

6. DO immediately terminate the relationship with the client, transferring care to a different therapist, if the client suggests anything of a sexual nature involving you.

7. DO NOT talk about other clients with the client.

8. DO NOT talk about your own personal life with the client. Especially DO NOT let the client have your personal home address or personal e-mail address.

9. DO NOT ever have sex with a client or former client. DO NOT even think of it. If you start to think of it, see Rule 6, above. Consider clients and former clients “off-limits” no matter how much you are tempted. If you are religious, just consider this as an attempt by Satan to seduce you. If it works, you are going to be in Hell, even before you die.

10. DO know what professional boundaries are and DO NOT cross them. This includes allowing a personal relationship to grow between you and the client, and includes selling anything to the client (e.g., Girl Scout cookies, tickets to a charitable event, Amway products, candy bars for your kids’ school band, etc.), agreeing to meet the client at any outside event, accepting gifts from the client, hiring the client to work for you, accepting “voluntary” services from the client (including volunteering to work in your office). If you need a friend that bad, terminate the therapist-client relationship and see Rule 6, above.

11. DO know that if you have even a suspicion that your therapist-client relationship is getting out of bounds, then it already is out of bounds. See Rule 6, above.

12. DO call a professional therapist colleague who is more senior to you and consult her or him about the “situation” if you think there may be a “situation.”

These may sound like “no-brainers” to you, but you would be surprised at how many complaints against licensed counselors and psychologists there are as a result of violating one or more of these “rules.”

(Note: These “rules” are just guidelines meant to help you keep out of trouble; these are not meant to be enforced against anyone, nor do they create or represent any “standard of care.”)

For additional information on how our firm can assist you in matters like this, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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